Vyas v. Bank of America










Filed 11/8/10 Vyas v. Bank of America CA2/5





NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS


California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.




IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

NEIL VYAS, Plaintiff and Appellant, v. BANK OF AMERICA, NA et al., Defendants and Respondents.

B217041 (Los Angeles County Super. Ct. No. EC046152)

APPEAL from an order of the Superior Court of Los Angeles County, David S. Milton, Judge. Affirmed.
Neil R. Vyas, in pro. per. For Plaintiff and Appellant.
Payne & Fears, Daniel F. Fears, Eric C. Sohlgren and Daniel F. Lula for Defendants and Respondents.






I. INTRODUCTION

Plaintiff, Neil R. Vyas, appeals from a summary judgment entered in favor of defendants, Bank of America, NA (the bank) and Thomas Tiboni. Plaintiff’s complaint contained causes of action for, among other claims, wrongful termination in violation of the federal and California medical leave acts. (29 U.S.C. §§ 2601 et seq.; Gov. Code,^[1] §12945.2.) We affirm.

II. BACKGROUND

A. The Complaint

The complaint alleged plaintiff was employed by the bank from December 2003 until his termination on January 31, 2005. Plaintiff was a Senior Business Banking Customer Representative. Plaintiff alleged he was terminated after he became ill on December 28, 2004, causing him to leave work. Plaintiff further alleged he did not report to work on December 29, 2004. Rather, plaintiff saw a physician. Plaintiff was told he was suffering from gastroenteritis. On December 30, 2004, plaintiff returned to work but became sick and had to leave the work place in an ambulance. Plaintiff allegedly telephoned Mr. Tiboni, a managing employee and supervisor, on December 31, 2004. Plaintiff explained the severity of his symptoms and his need to take a leave of absence pursuant to sections 12945.1 and 12945.2. Plaintiff missed work on January 3, 4 and 7, 2005. With each absence, plaintiff called and left a message relating the severity of his symptoms and the need to take a leave of absence.
The complaint alleged that, on January 9, 2005, plaintiff provided the bank with medical documentation certifying the need to take a leave of absence from December 31, 2004, through January 25, 2005. Plaintiff contacted Mr. Tiboni on January 24, 2005. Plaintiff explained he needed to extend his leave of absence until January 30, 2005. Plaintiff provided medical certification for the extension. Defendants approved the additional leave of absence and requested medical documentation stating plaintiff was able to return to work. Plaintiff returned to work on January 31, 2005, and provided the requested medical documentation. Plaintiff was terminated after a discussion with Mr. Tiboni. They discussed the need for additional time to follow up on plaintiff’s condition. In a later conversation, they discussed plaintiff’s qualification for family medical leave.
Plaintiff alleged he was terminated as a result of discrimination and in retaliation for exercising his family medical leave rights under federal and state law. The complaint sought damages in the: first cause action for violation of the Family and Medical Leave Act and The California Family Rights Act (discrimination and retaliation); second cause of action for violation of public policy (discrimination and retaliation) in terminating an employee on the basis of a disability (§ 12940; Lab. Code, § 1102.5); and third cause of action for discrimination and retaliation. (§ 12940 et seq.) Plaintiff received a right to sue notice from the Department of Fair Employment and Housing on December 20, 2005.

B. The Summary Judgment Motion

Defendants answered the complaint and moved for summary judgment. In support of the summary judgment motion, Mr. Tiboni declared at times pertinent to this action, he was employed in the bank’s call center as the Customer Service Team Manager. Mr. Tiboni hired plaintiff on December 26, 2003, as a customer service representative. Mr. Tiboni directly supervised plaintiff.
Plaintiff’s responsibilities as a customer service representative at the bank’s call center included answering telephone calls from customers. The customer service representatives were required to work when scheduled, be on time and ready to take calls. Paragraph 4 of Mr. Tiboni’s declaration states, “It was critically important that employees who were going to be late or absent give advance notice to their manager and Workforce Management so that we could take action to make sure that we had employees who could stay late to cover calls and/or call in additional employees to cover an absence by a Customer Service Representative.” Mr. Tiboni’s job as team manager, was to ensure that the call center was sufficiently staffed.
When plaintiff was hired, he went through an orientation, where the attendance policy was reviewed. Plaintiff received a copy of the Employee Handbook. The attendance policy is entitled, “Being Here for the Customer, Small Business Contact Center Attendance Guidelines.” The policy states: “At Bank of America, we are committed to providing our customers with the highest level of quality service possible, whenever they choose to contact us. Having the right number of associates available to serve our customers, when they need us, is critical. ‘Being here for the customer’ enables us to maintain the correct staffing levels needed to meet our customers’ needs. [¶] Good attendance is a requirement for continued employment at Bank of America. Frequent unscheduled absences or tardiness, as defined in these guidelines, may result in performance improvement counseling. The levels of counseling vary depending upon severity and range from informal performance improvement counseling up to termination of employment.”
A section of the attendance policy entitled “Attendance Expectations” states: “Associates are expected to perform their job at an acceptable level and maintain regular and consistent attendance. When an associate experiences difficulty in meeting these requirements, they have a responsibility to participate with management in developing an action plan to improve attendance.” The policy specifies that an associate is expected to: report on time to every scheduled work day; immediately advise a manager or an authorized designate of the reason for nonattendance and an anticipated return date; discuss expected absences in advance; and maintain regular contact with his or her manager during extended absences.
The attendance policy contains a call-in procedure for an employee who is going to be late or absent for work. The associate must personally notify the center, using the site-specific call-in procedure in the case of an absence. There is an exception for physical inability to personally call. The associate is required to leave a contact telephone number. The associate is expected to identify a Family and Medical Leave Act-qualified absence. The associate is required to follow the call-in procedures each day he or she is absent unless instructed otherwise by his or her manager.
Mr. Tiboni declared: “I personally gave [plaintiff] a copy of the Call Center’s Attendance Policy, and reviewed it with him. I told [plaintiff] that the Call Center’s specific Call-In Procedure required that he call both me and Workforce Management if he were going to be late or absent . . . . I informed [plaintiff] that he needed to call my cell phone rather than my desk phone if he were going to be absent or late. I also told [plaintiff] that it was critical that he follow the Bank’s Call-In Procedure when he was going to be absent.” Plaintiff testified at his deposition: “It was set up to where Mr. Tiboni would require us to call the Workforce Management and then call his desk. And then in some period of time within my employment during that year, it was changed to calling his cell phone as well.”
Mr. Tiboni verbally counseled plaintiff on April 23 and 24, 2004, about excessive tardies and absences. The oral counseling occurred after plaintiff was late three times and absent on three separate occasions. Mr. Tiboni verbally counseled plaintiff again on May 5, 2004, regarding excessive absenteeism. After the second oral warning on May 5, 2004, plaintiff was absent two additional days. Plaintiff had five absences in a six-month period. On June 8, 2004, Mr. Tiboni gave plaintiff a written warning regarding excessive absenteeism. In August 2004, Mr. Tiboni personally went over the call-in policy and procedure with plaintiff. Plaintiff was instructed that if he was going to be absent, he had to notify workforce management. In addition, plaintiff was obligated to speak to Mr. Tiboni. Both notifications were to occur prior to the normal starting time. Plaintiff indicated that he understood the policy and its requirements. At each of the counseling sessions, plaintiff never said he had any health issue or disability that needed to be accommodated.
Following the June 8, 2004 written warning, plaintiff was late two additional times and was absent on September 8, 9, 10 and 11, 2004. Mr. Tiboni declared: “[Plaintiff] did not comply with the Bank’s call in procedure for these absences because he left messages for me on my desk voicemail rather than calling my cell phone as instructed, and on occasion he only called Workforce Management without also calling me. Additionally, when he did call my desk phone, [plaintiff] called late at night when he knew that I would not be at my desk.”
On September 15, 2004, Mr. Tiboni gave plaintiff two final written counselings—one for call-in procedures and the second for tardies. Plaintiff was notified that he had failed to meet expectations by violating the department’s policies and procedures on three dates. Specifically, plaintiff was advised that he violated policy and procedure as follows: “On September 8, 2004, you were unable to come into work. You failed to follow proper call in procedures for the days you were absent from work. Established guidelines [are] that you are to contact workforce management and your immediate manager on [his or her] mobile phone. On September 8, you left a message on my desk voicemail. On September 9, 2004, you left a message at 11:46 p.m. on Eric Villegas’ [voicemail] for September 10. On September 11, you left a message with workforce management.” The September 15, 2004, call-in procedure final written counseling further states: “Neil, you and I had [a] discussion about the call policy and procedure [in] August 2004, and my expectations were made clear, as well as the number to call was given to you. If you are going to be absent from work, you must notify both [workforce management, and your manager] prior to your normal starting time.”
Also on September 15, 2004, Mr. Tiboni gave plaintiff a final written counseling for tardies. The final written counseling for tardies provides in part: “This is a final written warning to address your tardies. Previously you have been counseled on May 5, 2004 and June 10, 2004 regarding your tardies. Since that time you have had two additional tardies. Your tardies have become excessive. This brings your absences up to eight tardies within a rolling six-month period.” The tardy written counseling states plaintiff was late 77 minutes on July 29, 2004, and 10 minutes on August 27, 2004. It further states: “Your attendance is important in our effort to provide reliable and responsive service. You are an essential member of our team and you are expected to be at work and work your scheduled hours. You must contact your manager and follow departmental procedures if there is a need for you to be out of work[.]”
Both the written call-in and tardy counseling contained the following admonishment: “You must also comply with all Bank of America policies, procedures, guidelines and conditions of employment, including but not limited to those set forth in the Associate Handbook and the Bank of America Corporation Code of Ethics. [¶] You are expected to demonstrate immediate and sustained improvement in the areas specifically addressed concerning your attendance, and to comply with the policies, procedures, guidelines and conditions of employment set forth above. Failure to meet expectations may result in further disciplinary action up to and including termination.” Plaintiff executed both September 15, 2004 final written counseling documents on that date.
Plaintiff did not dispute that the final written counseling documents were given to him on September 15, 2004. Rather, he claimed in an unsigned declaration that an arrangement had been made to manipulate the employer’s policy by keeping plaintiff’s work status as active, notwithstanding his excessive absences. According to plaintiff, this arrangement was entered into with Mr. Tiboni. Paragraph 4 of plaintiff’s unsigned declaration in opposition to the summary judgment motion states: “I continued to suffer from acid reflux and begin to miss days of work at the bank. On September 7 [through] 10, [2004], I was out sick with a minor episode of dry heaving. When I returned back to work in September, [Mr.] Tiboni informed [me] that I had been fired for going over the absence policy. I provide[d] [Mr.] Tiboni with medical document to which [Mr.] Tiboni said he would find a way to focus on another issue rather [than] absences in September. Instead, [Mr.] Tiboni said he would write me [up] for call in procedures instead of using the absences as a basis of my violation. I agreed and Mr. Tiboni gave me a final warning. He said something to the effect of ‘… use this as a chance to avoid missing days and show me some consistency.’ I found that odd coming from [Mr. Tiboni] since he was the one that was known to be inconsistent. Nonetheless, I was asked to show some consistency at the September write up and I took heed to what [Mr. Tiboni] said by responding from the September write up into a period without any further [write ups] and many accolades. From the September 15, 2004 write up until the serious condition on December 28, 2004 when the serious condition arrived, I had been a stellar employee through this period, racking up kudos and awards.”
In his deposition, plaintiff testified that at the September 15, 2004 meeting, Mr. Tiboni did not know what was wrong. Plaintiff testified that he asked “in a small way” for accommodation based on his stomach condition that explained his reason for being late. Mr. Tiboni stated the absences and tardies were excessive. Mr. Tiboni wanted to know what was going on and if he could help. Plaintiff testified: “I asked him to understand the situation and that he would help me, not—because I’m coming up off final warnings and I’m coming up off final [written warnings], . . . and I had asked him, you know, ‘Take into consideration my situation.’ . . . [¶] There was a time where I can recall . . . he failed to administer a write-up or a verbal of some sort, and he in fact did try to attempt to help me by stating that to Workforce Management . . . when they had told him perhaps that he [plaintiff] had already exceeded the absences or tardies. By looking at this, it looks like I already went over, you know, the tolerance level for tardies and absences. And, I believe he attempted to . . . talk to people in upper management to explain my situation, but I’m not quite sure if he was successful.” Plaintiff admitted at his deposition that he failed to follow call-in procedures for his absences on September 8, 9, 10 and 11, 2004.
Mr. Tiboni declared that plaintiff went home sick on December 30, 2004. Plaintiff appeared to have flu-like symptoms. Plaintiff was absent from work beginning December 31, 2004. Plaintiff called Mr. Tiboni’s desk phone. Plaintiff did not call Mr. Tiboni’s cell phone. Mr. Tiboni declared for absences after December 30, 2004: “Additionally, [plaintiff] again called my desk phone at times he knew I would not be at my desk—12:24 a.m. 10:58 p.m., 2:04 a.m., 1:59 a.m., 9:37 p.m., 12:37 a.m. and 11:46 p.m. In order to discuss these violations with [plaintiff], I began calling the contact numbers that [plaintiff] had provided the Bank, however the cell phone number that [plaintiff] had provided indicated that it had been disconnected. [Plaintiff’s] parents answered the home phone number that [plaintiff] provided, and I left a message with them for [plaintiff] to call me on my cell phone, together with my cell phone number.” Plaintiff admitted not calling Mr. Tiboni’s cell phone. This was because plaintiff did not have the number. Plaintiff testified that, when he left work on the day the ambulance was called, he left his cell phone on his desk. Plaintiff did not call the bank during the day to get Mr. Tiboni’s cell phone number.
On January 5, 2005, Mr. Tiboni spoke with the site executive, Robert Reed, regarding plaintiff’s failure to comply with the bank’s call-in procedure. Mr. Reed agreed with Mr. Tiboni that plaintiff should be terminated for failing to follow the bank’s call-in procedure. Also on January 5, 2005, Mr. Tiboni called the personnel department. Mr. Tiboni informed the human resources representative plaintiff was to be terminated for failure to comply with the call-in procedure. The personnel department staffer agreed with Mr. Tiboni that plaintiff should be terminated. They then discussed the process to terminate plaintiff. Mr. Tiboni did not have a chance to inform plaintiff of the termination decision.
On January 7, 2005, plaintiff left a voicemail message for Mr. Tiboni asking for a leave of absence. Mr. Tiboni contacted the personnel department for advice. Mr. Tiboni was told that, because plaintiff had not been informed of the termination decision, the leave of absence request should be granted. But plaintiff was to be terminated upon his return to work. Mr. Tiboni submitted paperwork to the bank, asking that plaintiff be placed on a leave of absence. Mr. Tiboni understood that the leave of absence was approved and plaintiff was placed on a Family and Medical Leave Act leave of absence. The leave period was to extend until plaintiff was ready to return to work on January 31, 2005.
Mr. Tiboni did not inform plaintiff of the termination decision during the leave of absence. Mr. Tiboni was instructed by the personnel department to wait until plaintiff returned from the leave of absence. It was Mr. Tiboni’s understanding that the bank’s policy was to wait until an employee returned from a leave of absence before informing the worker of a discipline or termination decision. Plaintiff returned from the leave of absence on January 31, 2005, and was then terminated.
Mr. Tiboni made the decision to terminate plaintiff for violating the call-in procedure. At that time plaintiff had not requested a leave of absence. Mr. Tiboni did not have any knowledge that plaintiff’s absence might qualify for protection under the Family and Medical Leave Act. Mr. Tiboni believed that plaintiff had the flu. Plaintiff said he might have gastritis, food poisoning or the flu. Mr. Tiboni “had no understanding” that plaintiff was suffering from any type of disability.
Mr. Tiboni’s duties as plaintiff’s supervisor included making hiring and firing decisions on the bank’s behalf. This was done in consultation with Mr. Tiboni’s supervisor and the personnel department. The decision to terminate was made by Mr. Tiboni as part of his job duties at the bank. The decision to terminate plaintiff was made before he requested a Family and Medical Leave Act leave of absence. According to Mr. Tiboni, many of his employees had been out on the Family and Medical Leave Act-covered leaves of absence. The employees returned to work without being terminated. Plaintiff testified at his deposition that he was unaware of anyone else who had violated the call-in procedure after a final warning and was not terminated.

C. The Ruling

On January 23, 2009, defendants’ summary judgment motion was granted. The trial court concluded: defendants produced evidence which showed plaintiff could not establish a prima facie case of discrimination or retaliation; plaintiff produced evidence that he became ill and made efforts to call in; plaintiff did not produce any evidence to show he was terminated because he took a leave of absence; and plaintiff was terminated for failure to comply with the bank’s call-in procedures. The documents produced by plaintiff in opposition established he could not provide facts showing a causal connection between his leave of absence and the decision to terminate his employment. The trial court ruled, “Instead, the undisputed facts show that the defendants terminated the plaintiff’s employment because the plaintiff failed to follow call-in procedures after he had been warned on numerous occasions and counseled about the call-in procedures.” Plaintiff’s reconsideration motion was denied on May 15, 2009. Plaintiff filed a timely notice of appeal from the June 11, 2009 judgment.

III. DISCUSSION

A. Standard of Review

In Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851, our Supreme Court described a party’s burdens on summary judgment or adjudication motions as follows: “[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law. That is because of the general principle that a party who seeks a court’s action in his favor bears the burden of persuasion thereon. [Citation.] There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof. . . . [¶] [T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact. . . . A prima facie showing is one that is sufficient to support the position of the party in question. [Citation.]” (Fns. omitted, see Kids’ Universe v. In2Labs (2002) 95 Cal.App.4th 870, 878.) We review the trial court’s decision to grant the summary judgment motion de novo. (Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 65, 67-68; Sharon P. v. Arman, Ltd. (1999) 21 Cal.4th 1181, 1188, disapproved on another point in Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 853, fn. 19.) The trial court’s stated reasons for granting summary judgment are not binding on us because we review its ruling not its rationale. (Continental Ins. Co. v. Columbus Line, Inc. (2003) 107 Cal.App.4th 1190, 1196; Dictor v. David & Simon, Inc. (2003) 106 Cal.App.4th 238, 245.) In addition, a summary judgment motion is directed to the issues framed by the pleadings. (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1252; Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 673, overruled on a different point in Reid v. Google, Inc. (2010) 50 Cal.4th 512, 527, fn. 5.) Those are the only issues a motion for summary judgment must address. (Ibid.; Goehring v. Chapman University (2004) 121 Cal.App.4th 353, 364.)

B. The Burden-Shifting Analysis For Discrimination And Retaliation Cases

California relies on the three-stage burden-shifting test established by the United States Supreme Court in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802-803 to resolve discrimination and retaliation in the workplace claims. (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 354-355; see also Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.) Under McDonnell Douglas test, the plaintiff has the initial burden to establish a prima facie discrimination case. (Guz v. Bechtel, Nat. Inc., supra, 24 Cal.4th at p. 354; Scotch v. Art Institute of California-Orange County, Inc. (2009) 173 Cal.App.4th 986, 1004.) In order to establish a prima facie case of discrimination or retaliation, the employee must provide evidence that: the plaintiff engaged in a protected activity; the plaintiff suffered an adverse employment action such as termination or demotion; and there was a causal link between the protected activity and the adverse action. (Yanowitz v. L’Oreal USA, Inc., supra, 36 Cal.4th at p. 1042; Guz v. Bechtel, Nat. Inc., supra, 24 Cal.4th at pp. 354-355.) If the plaintiff meets the initial burden, the employer is required to offer evidence of a legitimate nondiscriminatory reason for the adverse employment action. (Yanowitz v. L’Oreal USA, Inc., supra, 36 Cal.4th at p. 1042; Guz v. Bechtel, Nat. Inc., supra, 24 Cal.4th at pp. 354-355.) These shifting burdens apply differently in a summary judgment litigation: “A defendant employer’s motion for summary judgment slightly modifies the order of these showings. If, as here, the motion for summary judgment relies in whole or in part on a showing of nondiscriminatory [or non retaliatory] reasons for the discharge, the employer satisfies its burden as moving party if it presents evidence of such nondiscriminatory reasons that would permit a trier of fact to find, more likely than not, that they were the basis for the termination. [Citations.] To defeat the motion, the employee then must adduce or point to evidence raising a triable issue, that would permit a trier of fact to find by a preponderance that intentional discrimination [or retaliation] occurred.” (Kelly v. Stamps.com Inc. (2005) 135 Cal.App.4th 1088, 1097-1098; see Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at pp. 850-851.)

C. There Are No Triable Issues of Material Fact

1. The trial court properly summarily adjudicated the first cause of action for violation of the federal and state medical leave acts.

Plaintiff contends summary judgment should not have been granted on his cause of action for violation of the Family and Medical Leave Act and the California Family Rights Act and retaliation for exercising his rights under federal and state law. We conclude the trial court correctly granted defendants’ summary judgment motion. Defendants produced undisputed evidence which demonstrated that regardless of whether plaintiff requested leave under the Family and Medical Leave Act or the California Family Rights Act, he would have been terminated for failing to abide by the bank’s call-in policy. There is no violation of the Family and Medical Leave Act when an employee fails to follow a company’s call-in procedures. (See 29 C.F.R. § 825.302(d) [under the Family and Medical Leave Act an employer may require “an employee to comply with the employer’s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances”]; see also Bones v. Honeywell Intern., Inc. (10th Cir. 2004) 366 F.3d 869, 877-878 [failure to comply with absence procedures justifies termination]; Lewis v. Holsum of Fort Wayne, Inc. (7th Cir. 2002) 278 F.3d 706, 709-710 [employer’s rules and attendance policy must call-in for each day of absence does not violate the Family and Medical Leave Act and failure to call-in justified termination]; Brown v. Automotive Components Holdings, LLC (7th Cir. 2010) ___ F.3d ___, ___ [2010 U.S. App. LEXIS 18737], [employer well within its rights under the Family and Medical Leave Act regulations in terminating employee according to standard leave procedures where the employee failed to give notice of extension of leave]; Bacon v. Hennepin County Med. Ctr. (8th Cir. 2008) 550 F.3d 711, 715 [employee’s termination for failure call-in policy while on leave did not violate the Family and Medical Leave Act].)
Plaintiff was instructed to call Mr. Tiboni’s cell phone in the event of an absence. The undisputed evidence shows plaintiff was verbally counseled on April 23 and 24, 2004, for three tardies and three absences. On May 5, 2004, plaintiff was verbally counseled for excessive absenteeism. Plaintiff was then absent an additional two days. On June 8, 2004, Mr. Tiboni gave plaintiff a written warning regarding excessive absenteeism. In August 2004, Mr. Tiboni personally went over the call-in policy and procedure with plaintiff. Mr. Tiboni reiterated that, if plaintiff was going to be absent, he had to notify workforce management prior to his starting time. Plaintiff was also obligated to call Mr. Tiboni’s cell phone.
On September 15, 2004, Mr. Tiboni gave plaintiff two final written counseling documents on call-in procedures and tardies. Plaintiff signed the two final written counseling documents. The call-in final written counseling documents specify the numerous violations of the call-in procedure. “On September 8, 2004, you were unable to come into work. You failed to follow proper call in procedures for the days you were absent from work. Established guidelines [are] that you are to contact workforce management and your immediate manager on [his or her] mobile phone. On September 8, you left a message on my desk voicemail. On September 9, 2004, you left a message at 11:46 p.m. on Eric Villegas’ [voicemail] for September 10. On September 11, you left a massage with workforce management.” The final written counseling stated Mr. Tiboni and plaintiff had discussed the call-in policy and procedure in August 2004. Mr. Tiboni also gave plaintiff the number to call in the event of an absence. Plaintiff was advised in writing: “If you are going to be absent from work you must notify both [workforce management, and your manager] prior to your normal starting time.” As part of the final written counsel for tardies given on September 15, 2004, plaintiff was warned: “Your attendance is important in our effort to provide reliable and responsive service. You are an essential member of our team and you are expected to be at work and work your scheduled hours. You must contact your manager and follow departmental procedures if there is a need for you to be out of work.”
Plaintiff became ill in the latter part of December 2004, with flu-like symptoms, (identified by him at various times as flu, food poisoning, gastritis or pancreatitis). Beginning on December 31, 2004, plaintiff failed to call Mr. Tiboni’s cell phone for absences on December 31, 2004 and January 2 through 9, 2005. Instead, plaintiff called the manager’s desk during late night or early morning hours when Mr. Tiboni was not at work. Plaintiff left messages at 12:24 a.m., 10:58 p.m., 2:04 a.m., 1:59 a.m., 9:37 p.m., 12:37 a.m. and 11:46 p.m. On January 5, 2005, Mr. Tiboni made a decision to terminate plaintiff for failing to comply with the call-in procedure. Mr. Tiboni consulted the site supervisor and the personnel department. The personnel department staffer stated plaintiff could be terminated for violating the call-in procedure. Mr. Tiboni did not advise plaintiff of the January 5, 2005 termination decision. Two days later, on January 7, 2005, plaintiff requested medical leave, which was authorized through January 31, 2005. Because of bank policy, Mr. Tiboni waited until plaintiff returned from the leave of absence to advise him that he had been terminated on January 5, 2005.
Under the circumstances, plaintiff cannot establish a causal link between the January 5, 2005 termination decision and the January 7, 2005 leave of absence request. Even though plaintiff may have been entitled to medical leave from January 7 until January 31, 2005, he has not produced any evidence that his termination for violating the bank’s call-in procedure was related to the exercise of those rights. Accordingly, there is no triable issue of material fact for a violation of the Family and Medical Leave Act.
Similarly, there is no evidence the January 5, 2005 termination decision was made in retaliation under the California Family Rights Act for the January 7, 2005 requested leave of absence. For that reason, plaintiff’s contention lacks merit he was terminated on January 31, 2005, when he returned to work because he requested time off to go to a follow-up medical appointment. The decision to terminate plaintiff had been made by Mr. Tiboni and approved by the personnel department on January 5, 2005. In any event, defendants asserted the termination decision was made based on plaintiff’s repeated refusal to comply with the bank’s call-in procedure for the call center. Even though plaintiff might have been entitled to medical leave, he did not dispute that he failed to comply with the bank’s call-in procedures. Plaintiff admits that he was warned about the call-in policy violations in writing on September 15, 2004. Furthermore, plaintiff admitted in paragraph 4 of his unsigned declaration that he could have been terminated by Mr. Tiboni as early as September 15, 2004, for excessive absences and tardies. Plaintiff also admitted he did not call in as instructed for the December 31, 2004, and January 2 through 9, 2005 absences.

2. Plaintiff cannot prove discrimination based on disability or retaliation as alleged in the third cause of action.

In order to establish a prima facie case of retaliation under the Fair Employment and Housing Act, a plaintiff must show: he or she engaged in a protected activity; the employee was subjected to an adverse employment action; and a causal link existed between the protected activity and the employer’s action. (Yanowitz v. L’Oreal USA, Inc., supra, 36 Cal.4th at p. 1042; Iwekaogwu v. City of Los Angeles (1999) 75 Cal.Ap.4th 803, 814-815.) The burden would then shift for defendants to offer evidence of a legitimate nondiscriminatory reason for the adverse employment action. (Yanowitz v. L’Oreal USA, Inc., supra, 36 Cal.4th at p. 1042; Guz v. Bechtel, Nat. Inc., supra, 24 Cal.4th at pp. 354-355.) In this case, defendants offered the legitimate and nondiscriminatory reason for the termination—plaintiff’s persistent refusal to comply with the bank’s call-in procedures. In order to survive the summary judgment motion, plaintiff was required to offer evidence of intentional retaliation. As noted, the undisputed evidence established plaintiff was terminated because he failed to comply with mandatory call in procedures.

3. Summary adjudication of the second cause of action for violation of public policy was proper.

In the second cause of action, plaintiff alleges defendants violated fundamental public policy established by the Fair Employment and Housing Act. Plaintiff reasons he was wrongfully terminated or retaliated against after he exercised his rights under the Family and Medical Leave Act and the California Family Rights Act and because he was disabled within the meaning of the Fair Employment and Housing Act. Under California law, an employer may be liable for terminating an employee in violation of public policy. (Stevenson v. Superior Court (1997) 16 Cal.4th 880, 889-890; Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, 1090, 1095, overruled on a different point in Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 80, fn. 6.) Discharge in violation of a statute such as the California Family Rights Act, the Family Medical Leave Act or the Fair Employment and Housing Act are wrongful terminations in violation of public policy. (Faust v. California Portland Cement Co. (2007) 150 Cal.App.4th 864, 886; Nelson v. United Technologies (1999) 74 Cal.App.4th 597, 612.) As we previously concluded, there was no triable issue of material fact as to whether plaintiff was terminated in violation of the Family and Medical Leave, the California Family Rights, or the Fair Employment and Housing Acts. The trial court correctly summarily adjudicated the second cause of action against plaintiff.

4. Mr. Tiboni is not personally liable for any claim raised in the complaint.

Plaintiff personally sued Mr. Tiboni for discrimination and retaliation for violating the Family and Medical Leave, the California Family Rights, the Fair Employment and Housing Acts and public policy. This contention has no merit. There is no personal liability on managers and supervisors for discrimination and retaliation under the Fair Employment and Housing Act or public policy. (Jones v. The Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1173 [Fair Employment and Housing Act]; Reno v. Baird (1998) 18 Cal.4th 640, 663 [Fair Employment and Housing Act or public policy]; Jennings v. Marralle (1994) 8 Cal.4th 121, 130 [public policy].)

IV. DISPOSITION

The judgment is affirmed. Defendants, Bank of America, NA and Thomas Tiboni, are awarded their costs on appeal from, plaintiff, Neil R. Vyas.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS



TURNER, P. J.

We concur:


ARMSTRONG, J.


KRIEGLER, J.

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