Filed 1/13/17

 CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

LETICIA BARENO,

Plaintiff and Appellant,

v.

SAN DIEGO COMMUNITY COLLEGE 

DISTRICT,

Defendant and Respondent.

 D069381

 (Super. Ct. No. 37-2014-00003862-

 CU-OE-CTL)

APPEAL from a judgment of the Superior Court of San Diego County, 

Richard E.L. Strauss, Judge. Reversed.

Valencia & Cywinska, Mark Joseph Valencia and Izabela Cywinska Valencia 

for Plaintiff and Appellant.

Artiano Shinoff, Ray J. Artiano, Jack M. Sleeth, Jr. and Paul V. Carelli IV for 

Defendant and Respondent.
2

I.

INTRODUCTION

Plaintiff Leticia Bareno appeals from a judgment entered in favor of defendants 

San Diego Miramar College (the College), San Diego Community College District, 

and San Diego Community College District Administrative Facilities Corporation.1

In early 2013, Bareno was disciplined by her employer, the College, in relation 

to her employment as an administrative assistant. Thereafter, Bareno required medical 

treatment and accompanying leave from work, and she requested medical leave from 

her supervisor. Bareno provided medical certification for this request for leave. After 

the time frame specified in Bareno's initial request for leave had ended, Bareno 

continued to be absent from work. Bareno had attempted to e-mail her supervisor a 

recertification of her need for additional medical leave, but the College claimed that 

Bareno's supervisor did not receive any such request from Bareno for additional leave. 

As a result, after Bareno continued to be absent from work for an additional five 

consecutive days, the College took the position that she had "voluntarily resigned." 

After Bareno learned that the College considered her to have voluntarily resigned as a 

result of her continued absence from work, Bareno attempted to provide the College 

with information regarding the medical necessity of the leave that she had taken. The 

College refused to reconsider its position.

 

1 We will refer to all three defendants jointly as "SDCCD."
3

Bareno filed suit against all three defendants, alleging that in effectively 

terminating her employment, SDCCD retaliated against her for taking medical leave, 

in violation of Government Code section 12945.2, the Moore-Brown-Roberti Family 

Rights Act, commonly referred to as the California Family Rights Act (CFRA). (See 

Cal. Code Regs., tit. 2, § 11087, subd. (b).)2 SDCCD moved for summary judgment 

on Bareno's sole claim for retaliation under CFRA, and the trial court granted the 

motion.

On appeal, Bareno contends that the trial court erred in granting summary 

judgment on her CFRA retaliation claim because there remain triable issues of 

material fact in dispute. We agree. Because there remain material issues in dispute 

and the record is capable of supporting a judgment in favor of Bareno, the trial court 

erred in granting summary judgment in favor of SDCCD. We therefore reverse the 

judgment and remand the matter for further proceedings.

 

2 CFRA is California's counterpart to the federal Family and Medical Leave Act 

of 1993 (FMLA) (29 U.S.C. §§ 2601-2654). (Richey v. AutoNation, Inc. (2015) 60 

Cal.4th 909, 913, 919 (Richey).) "California courts routinely rely on federal cases 

interpreting the FMLA when reviewing the CFRA. (Neisendorf [v. Levi Strauss & Co.

(2006) 143 Cal.App.4th 509,] 514, fn. 1.)" (Rogers v. County of Los Angeles (2011) 

198 Cal.App.4th 480, 487 (Rogers); see Cal. Code Regs., tit. 2, § 11096 [incorporating 

by reference federal FMLA regulations to "the extent that they are within the scope of 

Government Code section 12945.2 and not inconsistent with [the regulations 

implementing the CFRA], other state law, or the California Constitution"].)
4

II.

FACTUAL AND PROCEDURAL BACKGROUND

A. Factual background

Bareno began working as a Student Services Assistant for the College in March 

1999. In 2000, Bareno was promoted to Senior Secretary at the School of Business, 

Technical Careers and Workforce Development.

In 2006, the College suspended Bareno for a two-week period and 

recommended that her employment be terminated. However, rather than terminate 

Bareno's employment, the College entered into a "Last Chance Agreement"

(Agreement) with Bareno. The Agreement indicated that the College agreed to 

postpone its termination recommendation to the Board of Trustees in exchange for 

Bareno following specified terms and conditions of her employment, as set forth in the 

Agreement. Among other things, Bareno agreed to maintain regular and predictable 

attendance and to comply with the College's policies and procedures for reporting 

absences. The Agreement was in effect for 18 months, and expired in May 2008.

The record reveals no additional issues documented in Bareno's personnel file 

until 2012. In May 2012, Dean Lynne Ornelas, Bareno's supervisor, issued Bareno a 

"counseling conference letter" to memorialize an oral discussion between the two 

regarding Bareno's "excessive absences" and "disagreements . . . over the Fall 2012 

Schedule." In August 2012, Ornelas issued Bareno a written reprimand, citing a 

number of problems with Bareno's work, including absences without reasonable cause, 

incompetence, inefficiency, and neglect of duty.
5

In January 2013, Ornelas prepared a written recommendation that Bareno be 

suspended for performance issues similar to those noted in the written reprimand from 

August 2012. On February 14, 2013, the College held a predisciplinary meeting with 

Bareno to discuss the problems that Ornelas had identified. On February 19, the 

College disciplined Bareno with a three-day suspension from work with no pay. The 

suspension was set to run from Wednesday, February 20 through Friday, February 22, 

2013.

According to Bareno, on Monday, February 25, 2013, she called Ornelas at 

4:30 a.m. and told Ornelas that she would not be at work because she needed to seek 

medical attention. Bareno indicated that she was sick, depressed, stressed, and had to 

go to the hospital. Later that evening, Bareno e-mailed Ornelas to say that she would 

be out on medical leave through March 1, 2013, and stated that she would contact 

Ornelas "sometime on Friday[, March 1] to inform you of the date of my return to 

work."

The following day, February 26, Ornelas responded to Bareno's e-mail, and 

copied the College's Vice President, Jerry Buckley, informing Bareno that before she 

could return to work, she would have to provide a physician's statement "on either the 

District's station[e]ry, or on the physician's official station[e]ry."

On February 27, Bareno responded to Ornelas's e-mail with an e-mail stating, 

"Thank you for the information." The same day, Bareno e-mailed Ornelas a copy of a 

"Work Status Report" from Kaiser Permanente indicating that Bareno had a medical 

need to take leave from work from February 25, 2013 through March 1, 2013. The 
6

document identified the onset of the condition as February 25, 2013, and indicated that 

Bareno's next appointment with a medical provider would take place on March 1, 

2013.3 There is no indication in the record that anyone at the College regarded this 

document as insufficient certification to support Bareno's request for medical leave 

during the period between February 25 and March 1, 2013.

On Friday, March 1, 2013, Bareno e-mailed Buckley regarding her desire to 

appeal the three-day suspension. Bareno also indicated in her e-mail to Buckley that 

she was "out on a . . . medical leave" and would "notify all concern[ed] of [her] 

return."

Also on March 1, Bareno went to a UPS Store where she utilized the UPS 

Store's e-mail system to e-mail Ornelas a copy of a new "Work Status Report" from 

Kaiser Permanente indicating that Bareno required leave from work for a medical 

reason during the period of time between March 1, 2013 and March 8, 2013.4 

Specifically, the report, which appears on a Kaiser Permanente form, indicated that it 

had been prepared by Dr. Evan George Tzakis, M.D. The form identified Bareno as 

the subject of the order based on an "[e]ncounter" with her on March 1, 2013 at 

 

3 Specifically, the report, which appears on a Kaiser Permanente form, indicated 

that it had been prepared by Kristen Tracy Lennon (MFT). The form identified 

Bareno as the subject of the order based on an "[e]ncounter" with her on February 25, 

2013 at 2:00 p.m. The form included the title "Work Status Report" and indicated the 

date of "onset of condition" as "2/25/2013." The form also stated, "Off Work. [¶] 

This patient is placed off work from 2/25/2013 through 3/1/2013." (Underscore 

omitted.)

4 A copy of the e-mail in the record shows that it was sent from 

"store0571@theupsstore.com" and was sent to Ornelas's work e-mail address and 

Bareno's personal e-mail address. The e-mail was sent at 4:28 p.m.
7

1:00 p.m. The form included the title "Work Status Report" and indicated the date of 

"onset of condition" as "2/25/2013." The form also stated, "Off Work. [¶] This 

patient is placed off work from 3/1/2013 through 3/8/2013." (Underscore omitted.) 

This "Work Status Report" is in the same format as, and includes similar information 

to, the "Work Status Report" that Bareno had submitted to Ornelas on February 27.

According to Ornelas, she did not receive Bareno's March 1 e-mail.

Bareno did not appear for work on Monday, March 4. That day, Ornelas 

contacted the human resources office for the College and informed someone there "of 

[Bareno's] absence without any contact" for that day. Ornelas forwarded Bareno's 

February 25 medical request, as well. On March 6, Robin Lewison e-mailed Ornelas 

and Buckley, informing them that five consecutive days of unauthorized absences 

would constitute an abandonment of an employee's position under the collective 

bargaining agreement governing Bareno's employment.

Bareno did not report to work for the rest of the week of March 4, 2013. 

Bareno testified that sometime during the time period between March 1 and March 8, 

she received a call "from one of [her] coworkers, but [she] just could not discuss 

anything," and so she "did not speak to anybody."5 According to Bareno, her 

coworker left a message and said that she was " 'checking up on [Bareno].' "6 Bareno 

 

5 The coworker was identified as an administrative assistant to Buckley.

6 There is no indication in the record that the person who called Bareno informed 

Bareno that she was being considered absent without authorization at that point in 

time, or that the individual was calling on behalf of the College to inquire of Bareno 

whether she continued to need leave for medical reasons.
8

did not return the telephone call. Bareno did not 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, 2013.7 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 that was on file with the College.

Also on March 8, Peter Alvino engaged in an e-mail exchange with Ornelas 

regarding Bareno's absences. Alvino said to Ornelas, "Good question. As you know, 

her leave is only approved through March 1st. However, as you may also know, she 

may request from her physician an extension from March 4th and forward."8

The following day, Saturday, March 9, Bareno e-mailed Ornelas another "Work 

Status Report" from Kaiser Permanente that authorized her leave from work for the 

period between March 8, 2013 and March 15, 2013. The "Work Status Report"

identified February 25, 2013, as the date of onset of the condition for which Bareno 

 

7 The letter was sent to Bareno at the address the college had on file for her. The 

letter also indicates that it was delivered via "HOME DELIVERY," although it is 

unclear to what method of delivery this phrase refers. There is no other indication in 

the record that a copy of the letter was delivered to Bareno's residence.

8 The record does not disclose Alvino's position at the College, although Bareno 

identifies him as "the Director of Employee Relations," and it also does not reveal the 

question posed by Ornelas to which Alvino responded, "Good question."
9

required continued leave from work. In this e-mail, Bareno also informed Ornelas that 

she intended to return to work on April 8, 2013. 

On the morning of Monday, March 11, 2013, Ornelas e-mailed Robin Lewison 

in the College's Human Resource Department, Buckley, and Alvino to inform them of 

the March 9 e-mail Bareno had sent her. Ornelas asked, "Can I require a medical 

verification for all days missed since her suspension?" Lewison's response did not 

directly answer Ornelas's question, but instead quoted a portion of the collective 

bargaining agreement governing Bareno's employment regarding the provision stating 

that absence from duty without authorized leave for five days constitutes a voluntary 

resignation, and indicating to Ornelas that she should not contact Bareno, but should 

instead wait to see whether Bareno would request a meeting with her supervisor 

pursuant to the collective bargaining agreement.

On Wednesday, March 13, 2013, Bareno again e-mailed Ornelas medical leave 

notices from Kaiser Permanente for the period between March 8 and March 15, 2013, 

as well as an SDCCD form used to request a formal leave of absence. Ornelas 

forwarded Bareno's e-mail to Lewison, who responded, "Our position remains the 

same in that we wait for the unit member to contact you, Lynne, to request a meeting."

On Monday, March 18, Bareno faxed to Ornelas her SDCCD form seeking a 

formal leave of absence, as well as Kaiser Permanente "Work Status Reports"

indicating the need for leave between March 8 and March 19, 2013. That same day, 

Bareno, who had been seeking medical treatment in Riverside County during these 

events, traveled to San Diego to retrieve mail from her post office box. On this date, 
10

Bareno finally received Surbrook's March 8, 2013 letter informing her of her 

"voluntary resignation."9 Bareno immediately telephoned Surbrook, who "told 

[Bareno] bluntly that he could no longer talk to [her] because [she] was no longer an 

employee for the District." That day, Surbrook sent Bareno another letter via certified 

mail and "HOME DELIVERY," in which he referenced the College's March 8 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 not made 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 called 

Bareno and agreed to schedule a meeting with her and Alvino.

Bareno met with Alvino on April 3. She provided him with copies of all of her 

documentation from Kaiser Permanente and reiterated her position that she had been 

on medical leave from February 25th forward, and that she had not voluntarily 

resigned. Bareno also mailed, via certified mail, copies of her medical documents to 

both Lewison and Alvino on April 5. These documents included the Kaiser 

Permanente "Work Status Report" indicating that a doctor had placed Bareno on 

 

9 Bareno states in her declaration that this letter was neither delivered to her 

home, nor personally served on her.
11

medical leave from work between March 1 and March 8, 2013—i.e., during the 

disputed time period.

More than ten days later, on Tuesday, April 16, 2013, Alvino mailed Bareno a 

letter informing her that his "office received your recent documents," but had 

ultimately concluded 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." Bareno apparently received this letter on 

the same day it was sent.

Three days later, 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 for medical reasons, as well as a copy of 

the e-mail sent to Ornelas from the UPS Store in which Bareno had attached this 

"Work Status Report." During a telephone call, Alvino told Bareno that he would 

review the materials and would discuss the issue with "the Committee." Bareno did 

not hear from Alvino after that point in time.

B. Procedural background

Bareno filed a complaint against SDCCD on February 21, 2014, alleging one 

cause of action for retaliation in violation of 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. Bareno filed a timely notice of appeal.
12

III.

DISCUSSION

A. Applicable legal standards

1. Summary judgment standards

"Summary judgment is granted when a moving party establishes the right to the 

entry of judgment as a matter of law. [Citation.] On appeal, the reviewing court 

makes ' "an independent assessment of the correctness of the trial court's ruling, 

applying the same legal standard as the trial court in determining whether there are any 

genuine issues of material fact or whether the moving party is entitled to judgment as a 

matter of law." ' " (Hesperia Citizens for Responsible Development v. City of Hesperia

(2007) 151 Cal.App.4th 653, 658.)

In independently examining the record on appeal "to determine whether triable 

issues of material fact exist," we " 'consider[ ] all the evidence set forth in the moving 

and opposition papers except that to which objections were made and sustained.' " 

(Ambriz v. Kelegian (2007) 146 Cal.App.4th 1519, 1530 (Ambriz).) Further, " 'we 

must view the evidence in a light favorable to plaintiff as the losing party [citation], 

liberally construing [the plaintiff's] evidentiary submission while strictly scrutinizing 

the defendants' own showing, and resolving any evidentiary doubts or ambiguities in 

plaintiff's favor.' " (Ibid., italics added.)

" 'In the summary judgment context, . . . the evidence must be incapable of 

supporting a judgment for the losing party in order to validate the summary 

judgment.' " (Faust v. California Portland Cement Co. (2007) 150 Cal.App.4th 864, 
13

877 (Faust), italics added.) " 'Thus even though it may appear that a trial court took a 

"reasonable" view of the evidence, a summary judgment cannot properly be affirmed 

unless a contrary view would be unreasonable as a matter of law in the circumstances 

presented.' " (Ibid., italics added.)

2. Overview of CFRA

In 1991, the Legislature enacted CFRA (Gov. Code,10 § 12945.2). CFRA "is 

intended to give employees an opportunity to take leave from work for certain 

personal or family medical reasons without jeopardizing job security." (Nelson v. 

United Technologies (1999) 74 Cal.App.4th 597, 606 (Nelson).)

Generally, CFRA makes it an unlawful employment practice for an employer 

of 50 or more persons to refuse to grant a request by an employee to take up to 12 

workweeks in any 12-month period for family care and medical leave. (§ 12945.2, 

subds. (a), (c)(2)(A).) "CFRA has two principal components: a right to leave of up to 

12 weeks in any 12-month period to care for a family member or for the employee's 

own medical condition (Gov. Code, § 12945.2, subds. (a), (c)(2)(A)), and a right to 

reinstatement in the same, or a comparable, position at the end of the leave. (Gov.

Code, § 12945.2, subd. (a).)" (Richey, supra, 60 Cal.4th at p. 919.)

"Violations of . . . CFRA generally fall into two types of claims: 

(1) 'interference' claims in which an employee alleges that an employer denied or 

interfered with her substantive rights to protected medical leave, and (2) 'retaliation'

 

10 Further statutory references are to the Government Code unless otherwise 

indicated.
14

claims in which an employee alleges that she suffered an adverse employment action 

for exercising her right to CFRA leave." (Rogers, supra, 198 Cal.App.4th at pp. 487-

488.)11

Further, in order to ensure that employees are aware of their rights under 

CFRA, employers who are subject to CFRA are required to provide notice to their 

employees of the right to request CFRA leave. (Cal. Code Regs., tit. 2, § 11095, subd. 

(a); see also Cal. Code Regs., tit. 2, § 11091, subd. (a)(5).) The text of the minimum 

notice requirements is set forth at California Code of Regulations, title 2, section

11095, subdivision (d).12 Failure of the employer to give or post the required notice 

 

11 The statutory authority for an "interference" claim arises from section 12945.2, 

subdivision (t), which makes it unlawful for an employer "to interfere with, restrain, or 

deny the exercise of, or the attempt to exercise, any right" provided by CFRA. The 

statutory authority for a "retaliation" claim arises from section 12945.2, subdivision 

(l)(1), which makes it unlawful to retaliate against any individual because of his or her 

exercise of the right to family care or medical leave as provided by CFRA.

12 The minimum notice requirements are as follows, in relevant part:

"FAMILY CARE AND MEDICAL LEAVE (CFRA LEAVE) 

AND PREGNANCY DISABILITY LEAVE

"Under the California Family Rights Act of 1993 (CFRA), if you 

have more than 12 months of service with us and have worked at 

least 1,250 hours in the 12-month period before the date you want 

to begin your leave, you may have a right to a family care or 

medical leave (CFRA leave). This leave may be up to 12 

workweeks in a 12-month period for the birth, adoption, or foster 

care placement of your child or for your own serious health 

condition or that of your child, parent or spouse. While the law 

provides only unpaid leave, employees may choose or employers 

may require use of accrued paid leave while taking CFRA leave 

under certain circumstances.
15

regarding an employee's right to request CFRA leave precludes an employer "from 

taking any adverse action against the employee, including denying CFRA leave, for 

failing to furnish the employer with advance notice of a need to take CFRA leave." 

(Cal. Code Regs., tit. 2, § 11091, subd. (a)(5).)

 

"Even if you are not eligible for CFRA leave, if you are disabled 

by pregnancy, childbirth or a related medical condition, you are 

entitled to take a pregnancy disability leave of up to four months, 

depending on your period(s) of actual disability. If you are 

CFRA-eligible, you have certain rights to take BOTH a 

pregnancy disability leave and a CFRA leave for reason of the 

birth of your child. Both leaves contain a guarantee of 

reinstatement –for pregnancy disability it is to the same position 

and for CFRA it is to the same or a comparable position –at the 

end of the leave, subject to any defense allowed under the law.

"If possible, you must provide at least 30 days' advance notice for 

foreseeable events (such as the expected birth of a child or a 

planned medical treatment for yourself or of a family member). 

For events that are unforeseeable, we need you to notify us, at 

least verbally, as soon as you learn of the need for the leave.

Failure to comply with these notice rules is grounds for, and may 

result in, deferral of the requested leave until you comply with 

this notice policy.

"We may require certification from your health care provider 

before allowing you a leave for pregnancy disability or for your 

own serious health condition. We also may require certification 

from the health care provider of your child, parent or spouse, who 

has a serious health condition, before allowing you a leave to take 

care of that family member. When medically necessary, leave 

may be taken on an intermittent or reduced work schedule." (Cal. 

Code Regs., tit. 2, § 11095, subd. (d).)
16

It is generally an unlawful business practice "for a covered employer to refuse 

to grant, upon reasonable request, a CFRA leave to an eligible employee." (Cal. Code 

Regs., tit. 2, § 11088, subd. (a).)13

3. The legal framework for considering retaliation claims under CFRA in the 

summary judgment context

The elements of a cause of action for retaliation in violation of CFRA are: 

" '(1) the defendant was an employer covered by CFRA; (2) the plaintiff was an 

employee eligible to take CFRA [leave]; (3) the plaintiff exercised her right to take 

leave for a qualifying CFRA purpose; and (4) the plaintiff suffered an adverse 

employment action, such as termination, fine, or suspension, because of her exercise of 

her right to CFRA [leave].' " (Faust, supra, 150 Cal.App.4th at p. 885.) Like claims 

for discrimination, CFRA retaliation claims, such as the one Bareno asserts here, are 

subject to the McDonnell Douglas burden-shifting analysis. (Loggins v. Kaiser 

Permanente Internat. (2007) 151 Cal.App.4th 1102, 1108-1109 (Loggins).

In order to establish a prima facie case for retaliation as required by the first 

prong of the McDonnell Douglas burden-shifting analysis, an employee must show:

"(1) he or she engaged in a 'protected activity[ ]' [such as taking leave for a CFRAprotected purpose,] (2) the employer subjected the employee to an adverse 

employment action, and (3) a causal link existed between the protected activity and the 

employer's action." (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.) "If 

 

13 There exists a permissible limitation on the amount of total CFRA leave 

available to parents who work for the same employer for the purpose of adoption, 

birth, or foster care placement. (Cal. Code Regs., tit. 2, § 11088, subd. (c).)
17

the employee successfully establishes these elements and thereby shows a prima facie 

case exists, the burden shifts to the employer to provide evidence that there was a 

legitimate, nonretaliatory reason for the adverse employment action." (Loggins, supra, 

151 Cal.App.4th at p. 1109.) If the employer satisfies this prong by producing 

evidence demonstrating the existence of "a legitimate reason for the adverse 

employment action, 'the presumption of retaliation " ' "drops out of the picture," ' " '

[citation], and the burden shifts back to the employee to provide 'substantial responsive 

evidence' that the employer's proffered reasons were untrue or pretextual." (Ibid.)

In applying the McDonnell Douglas test in the context of a summary judgment 

motion, however, " '[w]e must keep in mind that the McDonnell Douglas test was 

originally developed for use at trial [citation], not in summary judgment 

proceedings.' " (Arteaga v. Brink's, Inc. (2008) 163 Cal.App.4th 327, 343-344 

(Arteaga).)

" ' "In such pretrial [motion] proceedings, the trial court will be 

called upon to decide if the plaintiff has met his or her burden of 

establishing a prima facie case of unlawful [retaliation]. If the 

employer presents admissible evidence either that one or more of 

plaintiff's prima facie elements is lacking, or that the adverse 

employment action was based on legitimate, non[retaliatory] 

factors, the employer will be entitled to summary judgment unless 

the plaintiff produces admissible evidence which raises a triable 

issue of fact material to the defendant's showing. In short, by 

applying McDonnell Douglas's shifting burdens of production in 

the context of a motion for summary judgment, 'the judge [will] 

determine whether the litigants have created an issue of fact to be 

decided by the jury.' " . . . Thus, " '[a]lthough the burden of proof 

in a [retaliation] action claiming an unjustifiable [termination] 

ultimately rests with the plaintiff . . . , in the case of a motion for 

summary judgment or summary issue adjudication, the burden 

rests with the moving party to negate the plaintiff's right to prevail 
18

on a particular issue. . . . In other words, the burden is reversed in 

the case of a summary issue adjudication or summary judgment 

motion.' " ' " (Id. at p. 344.)

" 'Whether judgment as a matter of law is appropriate in any particular case will 

depend on a number of factors. These include the strength of the plaintiff's prima facie 

case, the probative value of the proof that the employer's explanation is false, and any 

other evidence that supports the employer's case.' " (Guz v. Bechtel National, Inc.

(2000) 24 Cal.4th 317, 362.) We therefore reiterate: "[M]any employment cases 

present issues of intent, . . . motive, and hostile working environment, issues not 

determinable on paper. Such cases . . . are rarely appropriate for disposition on 

summary judgment, however liberalized [summary judgment standards may] be." 

(Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 286, italics added.)

B. Analysis

According to SDCCD, Bareno's CFRA retaliation claim fails because the 

undisputed evidence demonstrates that she cannot satisfy the third element of her 

claim—i.e., she cannot show that she " 'exercised her right to take leave for a 

qualifying CFRA purpose.' " (Faust, supra, 150 Cal.App.4th at p. 885.) As SDCCD 

notes, the trial court determined that Bareno could not establish her prima facie case 

on summary judgment for two reasons: (1) "she did not show [that] she requested 

leave from the College," and (2) "even if she did request the leave for March 4-8 via 

the UPS email, the doctor's note she offered did not meet the requirements of the 

CFRA to constitute a 'reasonable request.' " SDCCD contends that the trial court's 

reasons were correct and support judgment in its favor.
19

SDCCD also argues on appeal that Bareno's CFRA retaliation claim fails 

because the undisputed evidence demonstrates that she cannot satisfy the fourth 

element of her claim—i.e., she cannot show that she suffered an adverse employment 

action because she exercised her right to take CFRA leave. (Faust, supra, 150 

Cal.App.4th at p. 885.)

Our review of the record leads us to conclude that SDCCD was not entitled to 

summary judgment on these grounds. We must therefore reverse the trial court's order 

granting judgment in favor of SDCCD.

1. There are material issues in dispute regarding whether Bareno sufficiently 

and timely requested leave for a CFRA-protected reason

SDCCD asserts 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." (Formatting 

omitted.) Alternatively, SDCCD contends that Bareno did not exercise her right to 

CFRA leave for the period between March 4 and March 8, 2013 because the "medical 

documentation" (formatting omitted) that she provided to SDCCD was "inadequate." 

(Formatting omitted.) The record does not support the conclusion that SDCCD is 

entitled to judgment as a matter of law with respect to either contention. Rather, the 

evidence, when viewed in the light most favorable to Bareno, demonstrates that she 

did provide sufficient notice of her need for CFRA-protected leave.
20

a. Additional relevant legal standards

CFRA does not itself define what constitutes a valid "request" for CFRA leave. 

Instead, the Legislature expressly delegated to the Fair Employment and Housing 

Commission (the Commission) the task of "adopt[ing] a regulation specifying the 

elements of a reasonable request" for CFRA leave. (§ 12945.2, subd. (a).) CFRA 

does require that if an "employee's need for a leave pursuant to this section is 

foreseeable, the employee shall provide the employer with reasonable advance notice 

of the need for the leave." (§ 12945.2, subd. (h), italics added.) CFRA is silent with 

respect to how an employee may request leave for a CFRA-protected purpose that is 

not foreseeable.14

The regulation adopted by the Commission regarding requests for leave

provides in relevant part that, to request CFRA leave, "[a]n employee shall provide at 

least verbal notice sufficient to make the employer aware that the employee needs 

CFRA leave, and the anticipated timing and duration of the leave. The employee need 

not expressly assert rights under CFRA or FMLA, or even mention CFRA or FMLA, 

to meet the notice requirement; however, the employee must state the reason the leave 

is needed, such as, for example, the expected birth of a child or for medical treatment. 

The mere mention of 'vacation,' other paid time off, or resignation does not render the 

notice insufficient, provided the underlying reason for the request is CFRA-qualifying, 

 

14 The Commission's implementing regulations address situations in which an 

employee is unable to provide advance notice to an employer of his or her need for 

CFRA leave.
21

and the employee communicates that reason to the employer. The employer should 

inquire further of the employee if necessary to determine whether the employee is 

requesting CFRA leave and to obtain necessary information concerning the leave (i.e., 

commencement date, expected duration, and other permissible information)." (Cal.

Code Regs., tit. 2, § 11091, subd. (a)(1), italics added.)

This provision appears to presume the existence of circumstances in which an 

employee is able to provide an employer with notice of the need for leave. Indeed, the 

regulation permits employers to "require that employees provide at least 30 days'

advance notice before CFRA leave is to begin if the need for the leave is foreseeable 

based on an expected birth, placement for adoption or foster care, or planned medical 

treatment for a serious health condition of the employee or a family member." (Cal. 

Code Regs., tit. 2, § 11091, subd. (a)(2), italics added.) However, the regulations 

provide that this 30-day general rule is inapplicable when the need for medical leave is 

not foreseeable: "If 30 days' notice is not practicable, such as because of a lack of 

knowledge of approximately when leave will be required to begin, a change in 

circumstances, or a medical emergency, notice must be given as soon as practicable." 

(Cal. Code Regs., tit. 2, § 11091, subd. (a)(3), italics added.) Further, "[a]n employer 

shall not deny a CFRA leave, the need for which is an emergency or is otherwise 

unforeseeable, on the basis that the employee did not provide advance notice of the 

need for the leave, so long as the employee provided notice to the employer as soon as 

practicable." (Cal. Code Regs., tit. 2, § 11091, subd. (a)(4), italics added.)
22

In response to a request for leave for a CFRA-protected purpose, CFRA permits 

an employer to request "certification" from an employee who seeks to take CFRA 

protected leave for his or her own medical care. In this regard, CFRA provides:

"(k)(1) An employer may require that an employee's request for 

leave because of the employee's own serious health condition be 

supported by a certification issued by his or her health care 

provider. That certification shall be sufficient if it includes all of 

the following:

"(A) The date on which the serious health condition commenced.

"(B) The probable duration of the condition.

"(C) A statement that, due to the serious health condition, the 

employee is unable to perform the function of his or her position.

"(2) The employer may require that the employee obtain 

subsequent recertification regarding the employee's serious health 

condition on a reasonable basis, in accordance with the procedure 

provided in paragraph (1), if additional leave is required." 

(§ 12945.2, subd. (k)(1) & (2).)

If an employer has doubts regarding the validity of the employee's proffered 

certification, CFRA establishes a specific procedure that the employer must utilize 

before the employer may reject the employee's request for CFRA leave:

"(k) . . . [¶] . . . [¶] (3)(A) In any case in which the employer has 

reason to doubt the validity of the certification provided pursuant 

to this section, the employer may require, at the employer's 

expense, that the employee obtain the opinion of a second health 

care provider, designated or approved by the employer, 

concerning any information certified under paragraph (1).

"(B) The health care provider designated or approved under 

subparagraph (A) shall not be employed on a regular basis by the 

employer.
23

"(C) In any case in which the second opinion described in 

subparagraph (A) differs from the opinion in the original 

certification, the employer may require, at the employer's 

expense, that the employee obtain the opinion of a third health 

care provider, designated or approved jointly by the employer and 

the employee, concerning the information certified under 

paragraph (1).

"(D) The opinion of the third health care provider concerning the 

information certified under paragraph (1) shall be considered to 

be final and shall be binding on the employer and the employee." 

(§ 12945.2, subd. (k)(3).)

The Commission's implementing regulations provide further detail regarding 

how CFRA is to be carried out in the workplace. For example, the regulations define 

"certification" for purposes of CFRA:

"(a) 'Certification' means a written communication from the 

health care provider of the child, parent, spouse, or employee with 

a serious health condition to the employer of the employee 

requesting a family care leave to care for the employee's child, 

parent or spouse, or a medical leave for the employee's own 

serious health condition.

"[¶] . . . [¶]

"(2) For medical leave for the employee's own serious health 

condition, this certification need not, but may, at the employee's 

option, identify the serious health condition involved. Any 

certification shall contain the information identified in 

Government Code section 12945.2, as is demonstrated in section 

11097 of these regulations. For purposes of the certification 

'unable to perform the function of his or her position' means that 

an employee is unable to perform any one or more of the essential 

functions of his or her position. The certification shall contain:

"(A) The date, if known, on which the serious health condition 

commenced,

"(B) The probable duration of the condition, and
24

"(C) A statement that, due to the serious health condition, the 

employee is unable to work at all or is unable to perform any one 

or more of the essential functions of his or her position." (Cal. 

Code Regs., tit. 2, § 11087, subd. (a)(2).)

The implementing regulations further detail that an employer "may require that 

the employee provide any certification within no less than 15 calendar days of the 

employer's request for such certification, unless it is not practicable for the employee 

to do so despite the employee's good faith efforts. This means that, in some cases, the 

leave may begin before the employer receives the certification. Absent extenuating 

circumstances (e.g., unavailability of healthcare provider), if the employee fails to 

timely return the certification, the employer may deny CFRA protections for the leave 

following the expiration of the 15-day time period until a sufficient certification is 

provided. The same rules apply to recertification. If the employee never produces the 

certification or recertification, the leave is not CFRA leave. At the time the employer 

requests certification, the employer also must advise the employee of the anticipated 

consequences of his or her failure to provide adequate certification." (Cal. Code 

Regs., tit. 2, § 11091, subd. (b)(3), italics added.)

When viewed as a whole, it is clear that CFRA and its implementing 

regulations envision a scheme in which employees are provided reasonable time 

within which to request leave for a qualifying purpose, and to provide the supporting 

certification to demonstrate that the requested leave was, in fact, for a qualifying 

purpose, particularly when the need for leave is not foreseeable or when circumstances 

have changed subsequent to an initial request for leave.
25

Given this legal framework, it is not surprising that the question "[w]hether 

notice is sufficient under CFRA is a question of fact." (Avila v. Continental Airlines, 

Inc. (2008) 165 Cal.App.4th 1237, 1255.)

b. The evidence is capable of supporting a finding that Bareno 

sufficiently requested leave for a CFRA-qualifying purpose

SDCCD asserts that Bareno was absent on Monday, March 4, 2013, without 

"prior notice" from Bareno, and that it is undisputed that she "did not call in nor 

respond to inquiries for the remainder of that work-week." Thus, SDCCD asserts, 

"Bareno did not exercise her right to request CFRA leave." SDCCD's recitation of the 

"facts" when it makes these assertions, however, requires one to ignore certain 

evidence in the record and also requires that one view other facts in the record in the 

light most favorable to SDCCD, rather than Bareno. In considering SCDDC's motion 

for summary judgment, however, the court is required to view the record in the light 

most favorable to Bareno, not SDCCD. As we explain, a review of the record in the 

light most favorable to Bareno reveals evidence that would support a finding in favor 

of Bareno on the question whether she made a reasonable request for leave for a 

CFRA-qualifying purpose.

It is undisputed that Bareno originally notified SDCCD of her need for CFRAqualifying leave on Monday, February 25, 2013. On that day, Bareno called Ornelas 

and told her that she would not be at work because she needed to seek medical 

attention. Bareno indicated that she was sick, depressed, stressed, and had to go to the 

hospital. Later that evening, Bareno also e-mailed Ornelas to inform her that she 
26

would be out on medical leave at least through March 1, 2013. On February 27, 

Bareno provided SDCCD with a document from her health provider at Kaiser 

Permanente in which the provider certified that Bareno was "placed off work" by the 

provider for the period from February 25 to March 1, 2013. SDCCD apparently 

concedes that Bareno notified it of her need for this medical leave, and there is no 

evidence in the record that SDCCD ever challenged the propriety of the medical 

certification that Bareno submitted for this period of time. Nor is there evidence that 

SDCCD sought to employ the procedure set forth in CFRA to seek a second opinion 

regarding Bareno's need for medical leave.

There is also evidence in the record that on March 1, Bareno e-mailed Ornelas a 

second document from her health provider, indicating her need for leave from work 

between March 1 and March 8, 2013. This document identified the Kaiser Permanente 

provider, indicated the onset of Bareno's condition as "2/25/2013," and stated, "Off 

Work. [¶] This patient is placed off work from 3/1/2013 through 3/8/2013." 

(Underscore omitted.) This document, titled a "Work Status Report," is virtually 

identical to the document that Bareno submitted to Ornelas on February 27, which the 

College apparently accepted as sufficient certification of Bareno's need for medical 

leave for the period from February 25 to March 1, 2013.

SDCCD makes much of the evidence in the record regarding Ornelas's 

contention that she did not receive Bareno's e-mail, but this evidence does not entitle 

SDCCD to judgment. CFRA and its implementing regulations clearly contain a 

reasonableness component with respect to an employee's request for personal medical 
27

leave. Thus, even if a fact-finder were to determine that Bareno's March 1, 2013 email was sent, but did not arrive in Ornelas's inbox, this would not settle the question 

whether this fact should be used as a basis to conclude that Bareno's request was not 

reasonable, given all of the circumstances of her multiple communications with 

SDCCD, or whether SDCCD was justified in rejecting Bareno's later attempts to 

rectify the situation by providing copies of the medical certification that she had 

attempted to provide to Ornelas in that March 1, 2013 e-mail.

Further, at the time Bareno sent the March 1 e-mail to Ornelas, Bareno had 

already placed SDCCD on notice that she was receiving medical treatment that 

required her to take leave from work. Again, SDCCD knew that Bareno was out for a 

medical reason the entire week of February 25 through March 1, 2013, and there is no 

dispute that Bareno sent an e-mail to Buckley on Friday, March 1, 2013, which he 

received, 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. In fact, the evidence demonstrates that SDCCD intentionally did not engage 

with Bareno.15 However, a reasonable fact-finder could conclude, based on SDCCD's 

 

15 SDCCD asserts in briefing that Bareno did "no[t] respond to inquiries for the 

remainder of that work-week [i.e., the week of March 4 through March 8, 2013],"

seemingly suggesting that Bareno failed to respond to inquiries made to her from 

SDCCD. The record does not support such an inference. The record includes a single 

reference to a potentially work-related telephone call made to Bareno during that 
28

conduct, that it did not fulfill its obligations under CFRA, which places on employers 

an obligation to inquire with an employee if its requires additional information from 

that employee regarding the employee's request for leave. (See Cal. Code Regs., tit. 2, 

§ 11091, subd. (a)(1) ["The employer should inquire further of the employee if 

necessary to determine whether the employee is requesting CFRA leave and to obtain 

necessary information concerning the leave"].)

In addition, the CFRA regulations require that employers permit an employee 

up to 15 days to provide necessary certification when the employer has requested that 

the employee provide certification to support his or her request for leave for a CFRAqualifying purpose. (See Cal. Code Regs., tit. 2, § 11091, subd. (b)(3) [where 

employer requires certification, such certification may be required "within no less than 

15 calendar days of the employer's request for such certification"].) The regulations 

thus expressly contemplate that an employee may be out on CFRA protected leave 

prior to providing medical certification regarding that leave. (Cal. Code Regs., tit. 2, 

§ 11091, subd. (b)(3) ["This means that, in some cases, the leave may begin before the 

 

week. Specifically, Bareno testified at her deposition that during that week she 

received a call "from one of [her] coworkers, but [she] just could not discuss 

anything," and so she "did not speak to anybody." According to Bareno, her coworker, 

who was also an administrative assistant, left a message saying that she was "

'checking up on [Bareno].' " Again, there is nothing in this record to indicate that the 

coworker who called to " 'check[ ] up on' " Bareno was actually inquiring with Bareno 

about whether she was seeking leave for a CFRA-qualifying purpose or indicated to 

Bareno that she would have to provide certification of her need for the leave. SDCCD 

presented no evidence on summary judgment that during the relevant week, March 4 

through March 8, 2013, anyone from SDCCD attempted to contact Bareno to inquire 

about her medical status or need for additional leave, or that anyone informed her that 

SDCCD had not received medical certification and that Bareno would have to submit 

certification as soon as possible.
29

employer receives the certification"].) It is clear that SDCCD was aware that CFRAprotected leave may be taken even when an employee has not yet provided his or her 

certification, given that Peter Alvino notified others at SDCCD that although Bareno's 

"leave [was] only approved through March 1st," Bareno could "request from her 

physician an extension from March 4th and forward."

It is 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. Instead, 

SDCCD waited until the end of that week to send Bareno a letter via certified mail, 

addressed to a post office box, informing her of its position that she had been absent 

without justification and that it therefore considered her to have voluntarily resigned.

Based on all of the evidence, a reasonable fact-finder could conclude that 

Bareno's attempts to contact SDCCD about her need for leave for a CFRA-qualifying 

purpose were reasonable, and that she therefore sufficiently "requested" CFRA leave 

for the entire period during which she was absent in early 2013. A reasonable factfinder could also conclude that SDCCD was on notice that Bareno was absent from 

work between March 1 through March 8, 2013 due to a need for medical leave—i.e.,

for a CFRA-protected reason. Given this record, the fact that Ornelas states that she 

did not receive one of many e-mails sent by Bareno regarding an on-going and 
30

changing need for medical leave is simply insufficient to support summary judgment 

in favor of SDCCD on Bareno's CFRA retaliation claim.16

 

16 Curiously, SDCCD argues that there is "no 'mailbox rule' for emails because 

email is not as reliable as the U.S. Post Office," and urges that we should therefore 

infer that Bareno's e-mail "went into the 'junk' file or that Bareno did not send the 

email correctly." SDCCD cites no authority for its contention that Bareno may not 

rely on evidence that she sent the March 1 e-mail to Ornelas as support for her claim 

that she took CFRA-protected leave, and instead, that we should view the evidence in 

the record as suggesting that Bareno should be held responsible for any failures in 

communication. It would appear from the record that SDCCD's employees utilized email as a regular method of communication for many purposes. SDCCD's suggestion 

that the fact that Bareno attempted contact by e-mail, as opposed to some other form of 

communication, should be held against Bareno ignores the fact that the court is to 

resolve any evidentiary doubts or ambiguities in plaintiff's favor in the context of a 

defendant's motion for summary judgment.

Further, the evidence that SDCCD offered by way of Ornelas's declaration that 

she did not receive Bareno's March 1 e-mail is not dispositive. In fact, at most, the 

declaration establishes that disputed factual issues continue to exist on this record. For 

example, one could reach any number of conclusions as to what happened with respect 

to Bareno's March 1 e-mail to Ornelas. It is possible that Bareno's e-mail was 

screened out and for that reason, did not arrive in Ornelas's inbox. Or, the e-mail may 

have arrived in Ornelas's inbox, but Ornelas overlooked the message. It is also 

possible that Ornelas did receive the e-mail but falsely claimed that she did not receive 

it. Given that we do not make credibility determinations on summary judgment, but 

instead view the evidence in the light most favorable to the nonmoving party, we must 

acknowledge that the evidence, when viewed in the light most favorable to Bareno, 

could support a finding that Ornelas did receive Bareno's March 1, 2014 e-mail in her 

work account. Thus, even if a fact-finder were to conclude that Bareno's mere sending 

of the March 1 e-mail, without confirming that it was received, did not, in itself, 

amount to a reasonable request for leave under CFRA for the period between March 4 

and March 8, a fact-finder could nevertheless conclude that Bareno sent the e-mail, 

and that the e-mail was received by its intended recipient, such that any failure in 

communication was due to an error on Bareno's employer's part, and should not be 

attributed to Bareno.
31

c. The evidence is capable of supporting a finding that Bareno 

submitted sufficient medical certification to support her need for 

CFRA-qualifying leave

SDCCD contends that, even if one presumes that Bareno's March 1 e-mail to 

Ornelas was sufficient to provide notice to SDCCD regardless of whether Ornelas 

received it or not, Bareno still could not establish a prima facie case of retaliation 

because the Kaiser Permanente "Work Status Report" that she provided as certification 

of the need for CFRA-qualifying leave was "inadequate." Specifically, SDCCD 

contends that the "Work Status Report" "did not contain the required information to 

qualify as a reasonable request under the CFRA."17 We disagree with SDCCD's 

contention.

Again, CFRA establishes that a certification issued by an employee's health 

provider is sufficient if it includes "[t]he date on which the serious health condition 

commenced"; "[t]he probable duration of the condition"; and "[a] statement that, due 

to the serious health condition, the employee is unable to perform the function of his or 

her position." (§ 12945.2, subd. (k)(1) & (2).)

The "Work Status Report" that Bareno submitted for the relevant time period 

was issued by Dr. Evan George Tzakis on what appears to be a form regularly used by 

 

17 The trial court apparently agreed with SDCCD's contention, determining that 

SDCCD was entitled to summary judgment on Bareno's CFRA retaliation claim 

because, the court concluded, a " 'reasonable request' " for CFRA medical leave 

"requires [medical] certification" by a medical provider that meets the requirements set 

forth in California Code of Regulations, title 2, section 11088, and the "evidence 

submitted regarding Plaintiff's leave from March 4-8, 2013" was insufficient to permit 

Bareno to "establish[ ] a prima facie case of retaliation."
32

Kaiser Permanente for the purposes of informing employers that employees need time 

off from work or altered work arrangements due to medical necessity. The form 

provides that the onset of Bareno's condition that is the subject of the certification was 

"2/25/2013," thereby clearly indicating the date on which the serious health condition 

commenced. Further, the form states, "Off Work. [¶] This patient is placed off work 

from 3/1/2013 through 3/8/2013." (Underscore omitted.) In doing so, the form 

provides both the probable duration of Bareno's condition, as well as an indication to 

the employer that the doctor believes that a leave of absence from work is necessary. 

In other words, the clear intention of this document is to inform the Bareno's employer 

that she cannot fulfill the functions of her job and needs the identified time off in order 

to address a serious medical condition. The information provided on the standardized 

Kaiser Permanente form is sufficient to meet the standards set forth by CFRA.18

Although SDCCD argued in the trial court and now argues on appeal that this 

standardized form is insufficient to meet CFRA's standards, SDCCD apparently 

accepted a virtually identical form from Bareno as sufficient to certify the leave she 

took between February 28 and March 1, 2013. In other words, one could readily 

conclude from this record that SDCCD believed that an identical or similar form was 

 

18 In briefing, SDCCD also suggests that the "releases [Bareno] sent are 

incomplete because they did not identify the condition [requiring medical leave]." It is 

clear, however, that an employee need not share his or her medical condition with the 

employer, and a certification need not include such information to be considered 

sufficient: "For medical leave for the employee's own serious health condition, this 

certification need not, but may, at the employee's option, identify the serious health 

condition involved." (Cal. Code Regs., tit. 2, § 11087, subd. (a)(2), italics added.)
33

sufficient to support Bareno's claim for the CFRA-qualifying leave for the week prior 

to the week in question. At no point did SDCCD ever indicate to Bareno that any of 

the forms she had previously submitted did not meet the legal standard for a 

"certification" under CFRA. Yet on appeal, SDCCD questions the legal adequacy of a 

substantially similar form with respect to Bareno's absences from work between 

Monday, March 4 and Friday, March 8, 2013.

It is clear, however, that the regulations impose on the employer an obligation 

to request from the employee additional information if it believes that such 

information is necessary (Cal. Code Regs., tit. 2, § 11091, subd. (a)(1)), and CFRA 

provides for a specific process by which SDCCD could have determined whether 

Bareno's leave was in fact needed for a CFRA-qualifying reason if it had reason to 

doubt the validity of any of the medical certification forms that Bareno ultimately 

submitted (§ 12945.2, subd. (k)(3)). If SDCCD did not believe that Bareno's medical 

certification was sufficient, it could have requested additional information from her; 

CFRA envisions exactly this kind of give-and-take between an employer and an 

employee. SDCCD did not at any point indicate to Bareno that it viewed her 

documentation to be insufficient or seek additional information from her.

Given this record, SDCCD is not entitled to summary judgment on the ground 

that the medical documentation that Bareno provided to SDCCD was inadequate, as a 

matter of law, to constitute the exercise of a right to CFRA-qualifying leave.
34

2. There remain material facts in dispute regarding the fourth element of 

Bareno's prima facie case—i.e., whether the she suffered an adverse 

employment action because she exercised her right to take CFRAqualifying leave.

SDCCD argues on appeal that Bareno's CFRA retaliation claim fails because 

the undisputed evidence demonstrates that she cannot satisfy the fourth element of her 

claim. According to SDCCD, Bareno cannot show that she suffered an adverse 

employment action because she exercised her right to take CFRA leave. (See Faust, 

supra, 150 Cal.App.4th at p. 885.) SDCCD contends that "[t]he true but-for cause of 

the termination was that [SDCCD] thought she had abandoned her job." However, the 

record does not establish this as a matter of law.

Although the evidence indicates that Bareno's superiors had been unhappy with 

her for some time, the decision to consider her as having "voluntarily resigned," which 

was effectively a termination, took place only after she sought medical leave, and 

virtually immediately thereafter. There is a close temporal connection between 

Bareno's absence for medical reasons and her effective termination by way of 

SDCCD's interpretation of her absences as a "voluntary resignation," despite her 

continued communications with SDCCD employees and her attempts to provide the 

necessary medical certifications for all of the time for which she was absent. "When 

an adverse employment action 'follows hard on the heels of protected activity, the 
35

timing often is strongly suggestive of retaliation.' " (Collazo v. Bristol-Myers Squibb 

Mfg., Inc. (1st Cir. 2010) 617 F.3d 39, 50.)19

3. SDCCD's proffer of a nonretaliatory reason for termination does not 

entitle it to judgment as a matter of law

Finally, SDCCD argues that it "did not believe, nor have good reason to 

believe, that Bareno's absence from March 4 through March 8, 2013 was protected,"

and contends that it reasonably believed that she was voluntarily resigning. SDCCD 

asserts that Bareno "did not call to ask for leave," that SDCCD did "not receive[ ] the 

email or doctor's note she claims she sent," that Bareno "had not responded to the 

telephone message left for her," and that Bareno "had not responded to the certified 

letter, which warned her that her leave was unauthorized so that she must contact her 

supervisor within five days or her unauthorized absence would be treated as a 

voluntary resignation." However, this recitation of the evidence is not complete, nor 

does it view the evidence in the light most favorable to Bareno. A full review of the 

record demonstrates that there remain material issues of fact in dispute that should be 

decided by a trier of fact, not the court.

For example, although there is no evidence that Bareno placed a telephone call 

to anyone at SDCCD between March 1 and March 8, 2013, there is evidence in the 

record that Bareno e-mailed multiple individuals at SDCCD, including her direct 

supervisor, Ornelas, and Vice President Jerry Buckley, on March 1, 2013, in addition 

 

19 "California courts routinely rely on federal cases interpreting the FMLA when

reviewing the CFRA." (Rogers, supra, 198 Cal.App.4th at p. 487.)
36

to other dates. Although Ornelas states that she did not receive the March 1 e-mail 

from Bareno regarding her need for additional medical leave, there is clear evidence 

demonstrating that Bareno did, in fact, send the e-mail to Ornelas's work e-mail 

account. A fact-finder could conclude that Bareno's sending this e-mail to Ornelas was 

a reasonable effort to inform her employer of her continued need for CFRA-protected 

leave, such that it was sufficient notice under CFRA to protect Bareno's absences 

during the week of March 4 through March 8, regardless of whether Ornelas received 

the e-mail. A fact-finder could also reach a number of other conclusions with respect 

to Bareno's March 1 e-mail to Ornelas, none of which would entitle SDCCD to 

summary judgment on Bareno's CFRA claim. For example, as discussed above, a 

fact-finder could conclude that the e-mail was screened out before reaching Ornelas's 

mailbox or that Ornelas did receive the e-mail, but failed to view it or purposely 

ignored it. Regardless, what is clear from the facts presented on summary judgment is 

that there can be no certainty on this record that a fact-finder would conclude that 

Bareno's request for medical leave for the week of March 4 through March 8, 2013, 

was inadequate as a matter of law, under CFRA's requirements, given the evidence 

regarding Bareno's communications with SDCCD.

Even more problematic is SDCCD's suggestion that Bareno did not respond to a 

"telephone message left for her." The clear implication of SDCCD's contention is that 

SDCCD reached out to Bareno to clarify her need for medical leave and that she 

ignored SDCCD's attempt to engage with her. As we have previously explained, the 

evidence that SDCCD relies on for this point is Bareno's deposition testimony; a 
37

reasonable inference from Bareno's deposition testimony regarding this telephone call 

is that this was not an official call from SDCCD attempting to glean additional 

information from Bareno, but rather, that it was a personal telephone call from a 

coworker calling to check on Bareno. SDCCD's suggestion that Bareno's decision not 

to return her coworker's call may be viewed as her ignoring a request for information 

from SDCCD is contrary to the requirement that we view the evidence in the light 

most favorable to Bareno.

Similarly, SDCCD's reliance on the fact that Bareno "had not responded to the 

certified letter, which warned her that her leave was unauthorized so that she must 

contact her supervisor within five days or her unauthorized absence would be treated 

as a voluntary resignation" as an indication that it did "no[t] have good reason to 

believe" that Bareno's absences between March 4 and March 8 were CFRA protected 

is misguided. SDCCD did not place that letter to Bareno in the mail until March 8, so 

she clearly could not have received it during the week that she was absent. Therefore, 

her failure to contact her supervisor in response to that letter has no bearing on 

whether SDCCD had reason to believe, at the time Bareno was absent between March 

4 through March 8, that her absences were or were not CFRA protected.

What does have bearing on SDCCD's reason to believe that Bareno's absences 

between March 4 and March 8 were CFRA protected are all of Bareno's 

communications with her supervisors both prior to and after those dates. The record is 

replete with evidence from which a reasonable fact-finder could conclude that SDCCD 

knew, or reasonably should have known, that Bareno had no intention of voluntarily 
38

resigning her position (or being absent without excuse) when she was absent from 

work between March 4 and March 8, 2013.

Indeed, both immediately before and immediately after the week of March 4 

through March 8, 2013, Bareno contacted SDCCD with information regarding her 

need for medical leave, and provided her original medical certification and additional 

recertifications regarding her absences. Within a brief time after the relevant absences 

(and immediately upon learning that SDCCD was claiming that it had not received her 

original certification for the absences), Bareno informed SDCCD that she had been out 

for a medical reason and supplied the necessary medical certification. Thus, even if 

SDCCD had initially understood Bareno to be absent without justification, not long 

after those absences, it was made aware that she had been out for medical reasons, 

pursuant to a doctor's order. Nevertheless, even after obtaining this information, 

SDCCD would not reconsider its original position that her absences were unexcused. 

Further, it took this position despite the fact that Bareno had arguably provided 

SDCCD with prior notice of her need for medical leave for the week in question.20 

Although SDCCD took the position that Bareno had "voluntarily resigned" because of 

her apparent lack of communication during that week, in order to reach this 

conclusion, SDCCD had to overlook many other communications from Bareno, and 

had to ignore its own obligations to inquire of Bareno when there was a question about 

 

20 Again, Bareno had informed Buckley that she was "out on a . . . medical leave,"

as of March 1, and had indicated to him that her return date was uncertain. There is no 

suggestion in the record that he did not receive this e-mail message.
39

her need to continue her leave for CFRA-qualifying reasons. A reasonable fact-finder 

could conclude, based on this evidence, that SDCCD decided to interpret Bareno's 

absences as a "voluntary resignation," despite evidence to the contrary, in retaliation 

for Bareno taking medical leave.

This record does not demonstrate that the evidence is wholly "incapable of 

supporting a judgment for [Bareno as] the losing party." (Faust, supra, 150 

Cal.App.4th at p. 877.) We therefore reverse the judgment and remand the matter to 

the trial court for further proceedings.

IV.

DISPOSITION

The judgment is reversed. The matter is remanded for further proceedings. 

Costs are awarded to the appellant.

AARON, J.

WE CONCUR:

O'ROURKE, Acting P. J.

IRION, J.