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Calomarde v. Central State Credit Union11/1/2005
NOT TO BE PUBLISHED
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Following twelve workweeks of medical leave, plaintiff Linda Calomarde's employment with defendant Central State Credit Union terminated because she refused to request an extension of her leave and did not return to work. When plaintiff chose not to request an extension of her leave, she did so with full knowledge that her employment would terminate and with the intent that her employment would terminate. She now claims that defendant violated the federal Family and Medical Leave Act (FMLA) (29 U.S.C. § 2601 et seq.), the California Family Rights Act (CFRA) (Gov. Code, § 12945.2), and the state Fair Employment and Housing Act (FEHA) (Gov. Code, 12900 et seq.). We shall affirm the summary judgment entered in favor of defendant.
FACTS
Plaintiff began working for defendant in 1996. By 2002, she was employed as a loan officer. By all accounts, defendant regarded plaintiff as a good employee; and plaintiff has made no complaints about her employment, her supervisors, or her co-employees.
In the summer of 2002, plaintiff began to experience pain in her right knee. It eventually was determined that she was suffering from meniscus injuries and that surgical repair would be required. While plaintiff was dealing with her knee injury, she applied for a medical leave of absence. In her initial request for leave, plaintiff said that the date she would return to work was unknown. She was granted twelve weeks of leave to run from October 15, 2002, through January 3, 2003.
Defendant's written personnel policies advise employees that while defendant is not required to grant leave extensions beyond the maximum required by law, it will consider doing so. Requests for an extension should include revised anticipated dates and duration and a medical recertification. The policies also provide: "If an employee fails to return to work at the conclusion of an approved leave under this policy, including any extension of such leave, the employee will be considered to have voluntarily terminated his/her position with the Credit Union."
On December 1, 2002, defendant's Human Resources Manager, Cynthia Pierro, spoke to plaintiff by telephone. Pierro told plaintiff that her twelve weeks of leave would be expiring and that Pierro would need information on how long plaintiff would be off work. Plaintiff responded by sending a facsimile of a doctor's statement estimating that she would be off work until January 21, 2003.
Pierro again spoke with plaintiff by telephone and asked if she intended to return to work. When plaintiff said she had not thought about doing otherwise, Pierro responded: "So you want an extension" of the leave of absence. From this conversation, plaintiff deduced that she had other options and asked Pierro to explain. Pierro told plaintiff that when her leave expired, her employment would terminate if she did not request and receive an extension and did not return to work. Pierro informed plaintiff that if a leave extension was granted, then defendant would send her a letter advising of the new date that she would be expected to return. Plaintiff asked whether termination would be a blemish on her record and was assured that termination would be based on expiration of the leave and not on a performance issue. Pierro told plaintiff to think about it and call her back if she decided to request an extension of her leave.<
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