Woman Reassigned Then Fired After Taking Family Leave Is Entitled to Damages

By Joanne Deschenaux, J.D. Mar 24, 2017

A security guard who returned from family leave to a job with less pay and poorer working conditions—and who was later fired—is entitled to damages, the California Court of Appeal ruled.

Sheena Frederick was a security guard at Pacwest Security Services in Los Angeles. She monitored a vacant office building that was for sale and took potential buyers on tours of the building. Frederick's work hours were Monday through Friday from 6 a.m. to 2 p.m., and she earned $10 an hour.  

On May 9, 2013, Frederick began a disability leave of absence because of pregnancy complications. On Aug. 14, after her child was born, Frederick was given a six-week family care leave of absence to bond with her newborn.

When Frederick returned to work on Sept. 27, 2013, she was told that Pacwest's contract with the company that owned the building where she had worked had ended and that she could not be reinstated to her former position or reassigned to her former daytime shift. Frederick took a position at another building on the graveyard shift from 10 p.m. to 6 a.m., at a wage of $9 an hour. Her job involved walking the perimeter of a large property and standing outside the property to monitor the premises and greet visitors.

Because she was working outside on the graveyard shift, Frederick wore a second jacket under her uniform jacket to stay warm, but the building owner complained about her wearing two jackets and asked that she no longer work at the property.

Pacwest then offered Frederick a swing-shift job with varying work hours and days off. The work hours were Sunday and Monday from 4 a.m. to noon, Tuesday and Wednesday from noon to 8 p.m., and Thursday from 8 p.m. to 4 a.m. Frederick could not work these hours because she did not have child care available then for her three children. Rather than offer Frederick another position, Pacwest fired her.

Frederick filed suit in February 2014 claiming that Pacwest violated the California Family Rights Act (CFRA) by refusing to either reinstate her to her former position or to offer her a comparable position, and by subsequently firing her.

[SHRM members-only HR Q&A: For what reasons may an employee take leave under the CFRA?]

At trial, Pacwest's regional vice president testified that when Frederick returned from leave, her prior job no longer existed and he believed that there were no other daytime shift jobs available. He also testified that the company had a turnover rate that was close to 100 percent and positions that were filled one day could easily be available the next day.

He also testified that he removed Frederick from the graveyard shift job after Pacwest's client complained about Frederick's performance and attire. He admitted, however, that the wearing of a second jacket underneath a Pacwest uniform jacket would not affect a security guard's ability to perform his or her job, and that the contract with the client did not include requirements regarding clothing.

The jury ruled in Frederick's favor and awarded her $15,000 in compensatory damages and $63,000 in punitive damages. Pacwest appealed, arguing that the evidence was insufficient to support the jury's verdict, but the appellate court upheld the verdict.

Law Protects Job Security

The CFRA allows eligible employees to take a leave of absence from work for certain personal or family medical reasons without jeopardizing their job security. Family care or medical leave allowed under the law includes leave for the birth or adoption of a child. Upon a return from leave, the employee is entitled to the same position or to a position that is comparable to the worker's former position in terms of "pay, benefits, shift, schedule, geographic location and working conditions."

The CFRA makes it illegal for an employer to discharge or discriminate against an employee for taking leave.

The appellate court concluded that there was substantial evidence to support the jury's finding that Pacwest acted with a discriminatory or retaliatory intent when it reassigned Frederick upon her return from leave and then fired her less than two months later. While Frederick did not have the right to be reinstated to a position that had been eliminated during her leave, she did have a right to be reinstated to a comparable position with equivalent hours, pay and working conditions, the court said.

The jury reasonably could have inferred that, given the high turnover rate in the company, there would have been at least one comparable daytime shift available around the time of Frederick's return, but Pacwest instead chose to assign her to a graveyard shift position with less pay.

Moreover, Pacwest fired Frederick without offering her a job comparable to her former daytime shift and at her former wage rate.

The court also upheld the award of punitive damages, concluding that the jury reasonably could have found that Pacwest engaged in conduct that was "despicable" and in "conscious disregard" of Frederick's employment rights.

Frederick v. Pacwest Security Services, Calif. Ct. App., No. B268823 (Feb. 22, 2017).

Professional Pointer: Under the CFRA, if an employee is reinstated to a comparable position after a return from leave, that position must be "virtually identical" to the employee's original job in terms of pay, benefits and working conditions.

Joanne Deschenaux, J.D., is a freelance writer in Annapolis, Md.

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