Filed 3/27/20 Charles v. Western University of Health Sciences CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

ELIZABETH CHARLES,

Plaintiff and Appellant,

v.

WESTERN UNIVERSITY OF HEALTH SCIENCES,

Defendant and Respondent.

B293232

(Los Angeles County

Super. Ct. No. KC069487)

APPEAL from a judgment of the Superior Court of Los Angeles, Robert A. Dukes, Judge. Affirmed in part and reversed in part.

McColloch Law Firm, Michael T. McColloch; Williams Iagmin and Jon. R. Williams for Plaintiff and Appellant.

Liebert Cassidy Whitmore, Mark H. Meyerhoff and Christopher S. Frederick for Defendant and Respondent.

____________________________

In February 2017, plaintiff and appellant Elizabeth Charles (Charles) requested a leave of absence from her employer defendant and respondent Western University of Health Sciences (Western) to care for her seriously ill husband. Western initially approved her request for leave albeit only for 30 days. Then, in April 2017, Western terminated Charles. Charles sued Western alleging causes of action for breaches of contract and the covenant of good faith and fair dealing and violation of the Family Medical Leave Act (FMLA) (29 U.S.C.A. § 2601 et seq.) and California Family Rights Act enacted as the Moore-Brown-Roberti Family Rights Act (CFRA) (Gov. Code, § 12945.1 et seq.). Charles subsequently withdrew her cause of action for breach of the covenant of good faith and fair dealing. The trial court granted summary judgment in favor of Western, and Charles timely appealed.

The trial court based its summary adjudication of Charles’s cause of action for breach of contract on the absence of any disputed material fact that Charles had failed to exhaust her internal administrative remedies. It is undisputed that Western provided a grievance procedure in its faculty handbook, which governed its relationship with Charles. “[W]hen the organization violates its rules for appellate review . . . the further pursuit of internal relief is excused.” (Holderby v. Internat. Union etc. Engrs. (1955) 45 Cal.2d 843, 847.) As set forth in our legal discussion, there were disputed issues of material fact as to whether Western followed its own appellate internal remedies despite Charles’s efforts to invoke them. Accordingly, the trial court erred in summarily adjudicating Charles’s cause of action for breach of contract.

The trial court summarily adjudicated Charles’s FMLA and CFRA causes of action based on its conclusion that she did not qualify for leave under those statutes. It found no disputed issue of material fact that she had not worked the 1,250 hours in the 12 months preceding her request for leave to qualify for leave under the FMLA and CFRA. Charles does not dispute that to be entitled to leave under these statutes, she had to have worked those 1,250 hours, but argues, inter alia, that her hours spent trying to pass a board certification exam counted towards the 1,250-hour threshold.

We agree with the trial court that under the applicable legal authority, Charles failed to demonstrate that hours studying for her board certification can be considered in reaching the 1,250-hour threshold. Because without those hours, none of her other arguments would have created sufficient hours to cross that threshold, the trial court did not err in granting summary adjudication of Charles’s FMLA and CFRA causes of action.

In sum, we reverse that portion of the judgment granting summary adjudication of Charles’s cause of action for breach of contract and affirm the portion of the judgment granting summary adjudication of Charles’s leave causes of action.

BACKGROUND

Western employed Elizabeth Charles for seven and a half years. Charles first worked as a radiology instructor and then as an assistant professor. Charles never received a negative performance review, and Western never disciplined her. Charles initially worked 50 percent time in order to pursue her residency training. Western expected Charles to pass a certifying exam as part of Charles’s residency training. Passing the certifying exam, however, was not a condition of Charles’s employment at Western.

In September 2013, Charles started working full time as an assistant professor. When Charles was hired as an assistant professor she “understood that she was expected to work 40 hours per week in her new role as Assistant Professor.” In November 2014, at Charles’s request, Western reduced her employment from full time to 20 hours per week. Charles requested this reduction in hours to give her time to study for her board examination, which she had already failed three times. After Western granted Charles’s request to work 20 hours a week, it reduced her benefits, including health and dental insurance, because “she needed to work 30 hours per week to maintain her benefits and she was working 20 hours per week.” Prior to filing suit, Charles never claimed that she worked 30 or more hours, and at no time did she seek reinstatement of her benefits.

On February 19, 2017, Charles requested a leave of absence to care for her husband who was diagnosed with amyotrophic lateral sclerosis. “Plaintiff needed to provide care for her husband 24 hours per day, 7 days per week to facilitate her husband’s treatment, doctor’s appointments several times per week, activities and rehabilitation.” Charles did not indicate the duration of her leave request.

On March 9 and March 20, 2017, Western informed Charles that she was not eligible for FMLA or CFRA leave. “On March 28, 2017, Western approved Plaintiff for a [30-day] non-FMLA/Personal Leave of Absence, retroactive to February 20, 2017.” According to Western, it paid Charles her salary from her accrued sick leave. On April 28, 2017, Western terminated Charles’s employment.

1. April 28, 2017 Letter Terminating Charles

In a letter dated April 28, 2017, Dr. Geri Abracosa, (Abracosa), the director of Western’s employee relations and career development, wrote Charles the following:

“This letter is in response to your March 21, 2017 email regarding your request for a continued leave of absence to care for your spouse. As you have been previously informed, you did not qualify for the Family and Medical Leave Act (FMLA) or the California Family Rights Act (CFRA) because you did not have the required number of work hours to qualify for leave under these laws. [¶] As a result, you were provisionally placed on a Non FMLA/Personal Leave beginning February 20, 2017, pending receipt of a doctor’s certification from your spouse’s healthcare provider. We recently received the documentation you sent us stating that your spouse’s condition will last for an unknown duration and that you will need to provide care through at least September 15, 2017.

“Please be advised that we are unable to continue to grant you this extended, [i]ndefinite leave time. In your role as the only Radiologist for the College of Veterinary Medicine, continuing your leave will preclude the College from meeting its clinical obligations as well as its educational duties to the students. Therefore, we are processing the termination of your employment effective today, April 28, 2017.”

Prior to the April 28 letter, Western did not raise the possibility of dismissal with Charles.

According to Western, it “issue[d] the April 28, 2017 letter” because of Charles’s “need for an extended leave to care for her husband who had a condition of indefinite duration.”

2. Faculty Handbook

It is undisputed that Charles’s employment with Western was governed by a faculty handbook. The handbook delineates procedures for dismissing a faculty member. Specifically, first, the provost must inform the faculty member in writing of the possibility of dismissal and provide written evidence of adequate cause. Briefly summarized, adequate cause is defined in the handbook as “[d]emonstrated incompetence”; “[p]ersonal conduct” impairing “fulfillment of institutional responsibilities”; and “[f]inancial exigency” like “abandonment” of a program or position.

It was undisputed that Western did not follow its handbook’s procedures for dismissing a faculty member when it terminated Charles. The provost did not inform Charles of the possibility of dismissal before Abracosa sent the April 28 termination letter, or present evidence in writing of adequate cause.

The same dismissal procedures in the handbook refers a dismissed faculty member “to ‘Grievance Procedure’ in Appendix II after dismissal and faculty wishes to enter into Grievance process.” Appendix II, entitled “Grievance Procedures,” appears in a separate section of the handbook. Section 1 states: “1. A grievance proceeding may be called by a faculty member under the following circumstances: [¶] a. If the individual feels that his/her promotion or tenure has been unfairly withheld or withdrawn. [¶] b. If the individual feels he/she has been dismissed without adequate cause. [¶] c. If the individual feels he/she has been discriminated against or dealt with unfairly in other matters.” (Bold omitted.)

In its subsequent sections, appendix II describes a phased grievance process. Thus, section 2 of appendix II states:

“2. The first attempt to resolve this issue is an appeal from the faculty to the appropriate Dean within 2 months of the incident. The Dean has 20 working days to respond. The faculty member may call for a Grievance Committee meeting following the appeal to the appropriate Dean if the issue is not resolved to the satisfaction of the individual faculty. The faculty has six months to call for a Grievance Committee meeting following the receipt of the Dean’s response.” (Italics added.)

Section 3 sets forth the timing of the “grievance procedure” following “receipt of the Dean’s response”: “3. The grievance procedure must be initiated within six months of the receipt of the Dean’s response. There may be extenuating circumstances that this timeline cannot be met (due to illness or other extended leave issues) and in those circumstances, the faculty will be given a[n] opportunity for an extended timeline. At no time will there b[e] less than six months for the faculty to initiate the grievance procedure.” (Italics added.)

Following section 3 of appendix II is a subheading entitled “Grievance Procedures,” which addresses in subdivision (a) how a faculty member “initiate[s] the grievance procedure” by calling a meeting of the “Grievance Committee” and details in succeeding subdivisions the processes before the grievance committee. (Bold omitted.) Included in these processes is appeal of the grievance committee’s decision to the president and then to the board of trustees. It was undisputed that Charles never requested a meeting of the grievance committee after she was terminated.

3. After Receiving the Termination Letter, Charles Attempts to Contact Dean Nelson

On April 29, 2017, Charles e-mailed Dean Nelson referencing the April 28, 2017 termination letter. She first described her prior communications with Dean Nelson and the human resources department: “I have been communicating with you and Ms. [Monique] Mast in HR regarding my leave of absence and I have had no indication as of yet that me [sic] taking a leave was not possible or would lead to my termination. I have tried to be timely in my correspondence and have been as detailed as I could be about my husband’s condition.”

She then asserts, “I have also expressed interest, through emails with Dr. Cole [her immediate supervisor], in trying to figure out how to maintain my responsibilities should a leave of absence not be possible.” “At no time during any of these conversations was termination discussed as a possible outcome.”

She further observes that “[i]n my last communication with you via the phone on April 11th, no mention was made of you desiring to terminate my employment as a result of my request for a leave of absence. I am alarmed that the status of my request for leave went from ‘pending approval’ to ‘terminated’ without any conversation.”

On April 29, 2017 (a Saturday), Dean Nelson e-mailed that he acknowledged her “surprise and frustration” and that he would respond no later than the following Tuesday. On May 3, 2019, Charles sent Dean Nelson an e-mail indicating that she received his voicemail message (the contents of which are not revealed) and was “happy to engage in a conversation,” but requesting that further correspondence be in writing. Dean Nelson responded, “I understand you are hurt and angry at the moment. Can we at least talk first before we reduce our contact to writing?”

On May 6, 2017, Charles e-mailed Dean Nelson and Dr. Cole with copies to Abracosa and Mast, in an effort to “share [her] understanding of what has happened over the last couple months,” and indicating that she was “very concerned” she was not informed she was going to be terminated “as a result of my current situation.” She also included a timeline of events, including those predating her termination, which references, among other communications, e-mails and conversations with Dean Nelson regarding her husband’s illness, but no discussion about what the plan moving forward would be other than on April 13, 2017 when he said he “was in support of me taking a leave of absence.”

On May 31, 2017, over a month after Charles contacted Dean Nelson immediately following her termination, Charles’s counsel wrote Dean Nelson. In his letter, counsel indicated, among other things, that Western’s termination of Charles “violated Western’s own policies and procedures” and that Charles was dismissed “not for adequate cause.” He further stated, “Had Western followed its own policies and procedures for dismissal and adequate cause, Dr. Charles would have made other arrangements for the care of her husband, and she would not have lost her job.” He also threatened litigation that could result in a substantial verdict and apparently enclosed a settlement offer that was redacted from the copy of this correspondence in the appellate record.

4. June 29, 2017 Letter From Western’s Counsel Enclosing Letter Dated May 30, 2017 from Dean Nelson to Charles

On June 29, 2017 counsel for Western wrote counsel for Charles attaching a letter to Charles dated May 30, 2017 from Dean Nelson. In his letter, Dean Nelson stated that for his part, he had “no substantial comments” regarding her timeline. He explained that he had a very busy schedule in March. He admitted that “[t]here is no good way to explain what happened” and acknowledged that the April 28, 2017 letter “should not have been sent without my prior knowledge,” because it was his intent to “discuss options that might be available with you before a final determination was made.” He acknowledged her “distrust,” but added “the discussion still should be had, even if belatedly, to determine an appropriate outcome.”

Counsel for Western wrote in his cover letter that “[i]t was Dean Nelson’s intention to discuss possible options with Dr. Charles prior to the time any final determination was made regarding her employment status. In this regard, the letter sent to Dr. Charles from the human resources department was premature.” Counsel then withdrew the termination letter from the Human Resources Department and stated that “Charles’s employment status is restored, retroactive to April 28, 2017,” and that she would “be considered as being on authorized, unpaid leave from that date to the conclusion of her contract” although Dean Nelson was open to discussing “available options after that date.” Charles’s contract was to expire one day later, on June 30, 2017. He closed with an invitation to schedule a meeting with Dean Nelson.

5. Charles’s Complaint

On July 26, 2017, Charles filed a complaint against Western alleging causes of action for breach of employment contract, breach of the covenant of good faith and fair dealing, violation of the CFRA, and violation of the FMLA. As noted, Charles later withdrew her cause of action for breach of the covenant of good faith and fair dealing.

Charles alleged that she was terminated because she requested “a four-month leave of absence . . . to care for her very seriously ill husband Drake, who is suffering from amyotrophic lateral sclerosis.” Charles alleged that she was “eligible for twelve weeks of family leave under [the] Family Medical Leave Act (‘FMLA’) and California Family Rights Act (‘CFRA’) pursuant to 29 C.F.R. § 825.110 and 2 C.C.R. § 72970(e), respectively, in that she had been regularly employed by Defendant Western for 1,250 hours in the twelve months immediately prior to her request for leave and had not taken any medical or family leave during that time.” (Capitalization omitted.)

6. Western’s Answer

Among other affirmative defenses, Western asserted that Charles failed to exhaust her administrative remedies. Western also alleged that Charles failed to qualify for medical leave under either the FMLA or CFRA.

7. Summary Judgment

Western moved for summary judgment. Western argued that it was entitled to the summary adjudication of Charles’s cause of action for breach of contract because she failed to exhaust her internal administrative remedies. Specifically, she failed to “to call for a Grievance Committee meeting or otherwise initiate the grievance procedure as required by the terms of the Faculty Handbook, and therefore failed to exhaust her administrative remedies.”

Charles countered with evidence she contended demonstrated that Western “ignore[d] entirely the dismissal procedures” in the handbook, and was “attempting to hold Dr. Charles to a grievance procedure which Western itself clearly ignored and/or violated.” As an example of the latter contention, Charles asserted that Dean Nelson failed timely to respond to Charles’s “timely” inquiry raising the issue of her termination, which response would have been the “trigger[ ]” for “the Grievance Procedure under Appendix II.”

Western contended it was entitled to summary adjudication of Charles’s causes of action for violation of the CFRA and FMLA because Charles did not qualify for leave under either statute. According to Western, “Plaintiff worked part-time (20 hours per week) during this period [one year prior to her requested leave]” and assuming she worked those hours every week, she would have worked only 1,040 hours. Further, according to Western, “[F]rom February 21, 2016 to February 22, 2017, Plaintiff [Charles] took three separate and extended breaks during which she performed little to no work for Western.”

8. Charles’s Declaration

In her opposing declaration, Charles first described her efforts to resolve “the issue of [her] termination” immediately upon receiving her termination letter, and Dean Nelson’s failure to get back to her other than to apologize for not doing so, until June 29, 2017, when Western’s counsel enclosed in his letter Dean Nelson’s May 30, 2017 letter described above.

As for her claim that she worked the hours to be eligible for FMLA and CFRA leave, Charles represented she “exceeded” the 1,250 hours requirement of the FMLA and CFRA. She stated that she worked 1,318.5 hours during the relevant time period.

Charles attached to her declaration an exhibit documenting her hours. Her hours included five days of “Board Prep” in April, five days of “Board Prep” in May, five days of “Board Prep” in July, 10 days of “Board Prep” in August and four days taking the exam in September. As the trial court found, Charles spent 232 hours of the 1,318.5 hours studying for and taking her board examination. Charles also described her job responsibilities as “reviewing films, teaching courses, responding to students, writing course material, writing exams, making rounds, and supporting the clinical needs of the University.” Charles represented she passed the written portion of her board examination and planned to retake the oral portion of the board examination.

9. Trial Court Opinion

In its judgment in favor of Western, the trial court adopted its tentative ruling dated July 19, 2018. In that tentative ruling, the trial court concluded as a matter of law, that “Plaintiff failed to exhaust her administrative remedies, and therefore, summary judgment is appropriate.” The trial court reasoned: (1) estoppel did not excuse exhausting internal remedies because there was no evidence that Western told her “that she could not avail herself of the grievance procedure,” and it did not matter that Western did not discuss the grievance procedure with her; (2) the futility exception to the exhaustion defense did not apply because Charles’s evidence did not demonstrate that the agency had declared “ ‘what its ruling will be’ ” on a particular case; and (3) the fact that Western did not follow its “ ‘dismissal’ ” procedures did not absolve Charles from exhausting her internal administrative remedies through the “ ‘grievance’ ” procedures, and noted that the procedures appeared in different parts of the handbook.

The trial court provided an “alternative ground” for its ruling, that is, Charles failed to present evidence creating a triable issue that she worked more than the 1,250 hours to qualify for FMLA or CFRA leave. The court reasoned that for work to count towards the 1,250-hour threshold, the work had to be controlled by the employer, and pursued necessarily or primarily for the employer’s benefit. Applying this standard, the trial court deducted from Charles’s asserted 1,318.5 hours, the 232 hours “studying for the board exams,” which then put Charles below the 1,250-hour threshold for qualifying for leave under the FMLA and CFRA. The trial court also found undisputed evidence, including Charles’s own admission, that demonstrated passing the board examination was not a requirement of her employment at Western.

STANDARD OF REVIEW

“ ‘We review the ruling on a motion for summary judgment de novo, applying the same standard as the trial court.’ [Citation.] ‘Summary judgment is appropriate only “where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law.” ’ [Citations.] We view the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in its favor.” (Barenborg v. Sigma Alpha Epsilon Fraternity (2019) 33 Cal.App.5th 70, 76.) Although we independently assess the grant of summary judgment our review is governed by appellate procedure, including that “ ‘ “[a] judgment or order of the lower court is presumed correct,” ’ and thus, ‘ “error must be affirmatively shown.” ’ [Citations.] Under this principle, [the appellant] bear[s] the burden of establishing error on appeal, even though [the respondent] had the burden of proving its right to summary judgment before the trial court. [Citation.] For this reason, our review is limited to contentions adequately raised in the [appellant’s] briefs.” (Paslay v. State Farm General Ins. Co. (2016) 248 Cal.App.4th 639, 645 (Paslay).)

DISCUSSION

Our discussion is divided into two parts. First, we consider whether the trial court properly summarily adjudicated Charles’s causes of action for breach of contract based on the conclusion that she failed to exhaust her internal administrative remedies, i.e., Western’s grievance procedures. In the second part, we consider whether as a matter of law, Charles did not qualify for FMLA or CFRA leave.

A. Charles Raised a Triable Issue of Material Fact as to Whether Western’s Conduct Excused Exhaustion of Western’s Internal Remedies
B.
In its motion for summary judgment, Western argued, “The undisputed facts show that Plaintiff failed to exhaust her remedies and that she had no plausible justification for failing to exhaust.” Western relied on the following undisputed facts: Charles “admitted that, despite not being satisfied with the Dean’s response to her appeal, she never called for a Grievance Committee meeting as was her right under subsection 2 of the Grievance Procedure.” Charles “admitted that she never initiated the grievance procedure because she never wrote to the Chair of the Grievance Committee to specify the reason for the grievance and the effort she had undertaken to resolve the dispute.” Apparently conceding that Dean Nelson did not respond within 20 days to Charles’s letter initiating the grievance procedures outlined in appendix II, Western argues Charles’s admission that she was not satisfied with his response required her to proceed to the next step of the grievance process—requesting a meeting of the grievance committee and “completing the grievance procedure.”

In opposing summary judgment, Charles essentially made three arguments to demonstrate a triable issue of fact. First, Charles contended Western was estopped from asserting its exhaustion defense, and it would have been futile to pursue Western’s “Grievance Procedure,” because Abracosa “testified[ ] the Grievance Procedure was not suitable to review a termination based on the denial of a leave of absence.” (Underlining omitted.) Second, Western failed to follow its own dismissal procedures, which “are required to occur before the Grievance Procedure of Appendix II is triggered.” (Underlining omitted.) Finally, because “the Grievance Procedure under Appendix II is triggered by a response from the Dean,” Charles was excused from exhausting the grievance procedure when Dean Nelson did not respond, let alone substantively, for more than 20 days after Charles sent her April 29, 2017 letter inquiring into her termination.

As we explain below, we agree with Charles’s third contention—that the evidence demonstrated a triable issue of fact as to whether Western’s failure to comply with its “Grievance Procedures” in appendix II excused Charles from exhausting Western’s internal administrative remedies.

1. Legal background on exhaustion of internal remedies

The parties make several arguments largely relying on contract principles of estoppel, repudiation and futility. Our analysis of Supreme Court precedents explains why we conclude one issue is dispositive: whether facts demonstrating Western’s failure to follow its own internal appellate review procedures precludes summary adjudication of Charles’s cause of action for breach of contract? As explained below, our Supreme Court has recognized that a defendant’s own failure to follow its internal appellate review procedures can defeat an exhaustion of internal remedies defense.

In Westlake Community Hosp. v. Superior Court (1976) 17 Cal.3d 465 (Westlake), plaintiff sued a hospital for damages when it denied her admitting privileges. She did not appeal that decision pursuant to procedures set forth in the hospital’s “ ‘Constitution and By Laws,’ ” which provided “ ‘[a] member failing of appointment shall have the right of appeal to the Medical Executive Committee.’ ” (Id. at p. 473.) The Supreme Court recognized the salutary principles underlying exhausting of internal remedies, including: “If an organization is given the opportunity quickly to determine through the operation of its internal procedures that it has committed error, it may be able to minimize, and sometimes eliminate, any monetary injury to the plaintiff by immediately reversing its initial decision and affording the aggrieved party all membership rights; an individual should not be permitted to increase damages by foregoing available internal remedies.” (Id. at p. 476.)

Recognizing that the doctrine of exhaustion of internal remedies has long-standing judicial roots (see Westlake, supra, 17 Cal.3d at p. 474), the Supreme Court, nonetheless, affirmed the lower court’s denial of defendant’s summary judgment motion because, among other grounds, the reference to “member” in the foregoing language was ambiguous, and defendant’s evidence did not indicate “that the hospital ever informed [plaintiff] that she had any . . . right [to appeal her rejection to the hospital’s medical executive committee].” (Id. at p. 477.)

In Rojo v. Kliger (1990) 52 Cal.3d 65 (Rojo), our high court explained the “ ‘ context’ ” to which Westlake “properly” applies, to wit, “where the party or entity whose ‘quasi-judicial’ determination is challenged—be it hospital, voluntary private or professional association, or public entity—has provided an internal remedy.” (Id. at p. 86.) It also reiterated that exhausting internal remedies is grounded in public policy, including not intruding into a private association’s internal affairs and not burdening the courts. (Ibid.)

In Palmer v. Regents of University of California (2003) 107 Cal.App.4th 899 (Palmer), Division 7 of our court reiterated the public policy roots of the doctrine of exhaustion of internal remedies, and eschewed that the doctrine is grounded in contract: “As made plain by Rojo’s expansive definition of the ‘context’ in which the doctrine properly applies, the rationale for Westlake’s exhaustion requirement is not the existence of a contractual relationship between the plaintiff and the defendant entity.” (Palmer, supra, at p. 905.)

Palmer then described the “ ‘compelling’ ” policy considerations underlying the requirement to exhaust internal administrative remedies: “ ‘[A]n exhaustion of remedies requirement serves the salutary function of eliminating or mitigating damages. If an organization is given the opportunity quickly to determine through the operation of its internal procedures that it has committed error, it may be able to minimize, and sometimes eliminate, any monetary injury to the plaintiff by immediately reversing its initial decision and affording the aggrieved party all membership rights; an individual should not be permitted to increase damages by foregoing available internal remedies. [Citation.] [¶] Moreover, by insisting upon exhaustion even in these circumstances [where the plaintiff is seeking only damages and not reinstatement], courts accord recognition to the “expertise” of the organization’s quasi-judicial tribunal, permitting it to adjudicate the merits of the plaintiff’ s claim in the first instance.’ ” (Palmer, supra, 107 Cal.App.4th at p. 905.)

The parties do not dispute these salutary policies or that generally, a plaintiff must exhaust internal administrative remedies. What they do dispute is whether Western’s conduct excused Charles from exhausting Western’s grievance procedures.

Western argues the fact that it did not follow its own internal procedures for dismissing a faculty member is irrelevant because, among other grounds, those procedures are independent from Charles’s obligation to exhaust the internal administrative remedies in Western’s grievance procedures. Western further contends, “Charles presented no evidence that Western refused to submit to the Grievance Procedures of the Faculty Handbook” and “[t]here is no evidence that Western repudiated the applicable Grievance Procedures.”

In Holderby, supra, 45 Cal.2d 843, our Supreme Court discussed the circumstances under which a defendant’s violation of its own internal procedures would vitiate a defense of failure to exhaust internal remedies. At issue there was whether the plaintiff-former union member had failed to exhaust the union’s internal remedies in seeking reinstatement and damages from the union. In discussing its precedents, the Supreme Court made the following distinction critical to the instant appeal: Defendant’s “violation of its own rules which inflicts the initial wrong” would not excuse a plaintiff ’s failure to exhaust internal remedies, but when a defendant “violates its rules for appellate review or upon a showing that it would be futile to invoke them . . . further pursuit of internal relief is excused.” (Id. at p. 847.)

Applying this distinction, the Supreme Court reversed the judgment in plaintiff ’s favor: Where “plaintiff made no attempt to obtain an internal appeal, and there is nothing to indicate that an appeal would not have been accorded him in which to seek redress for the alleged wrongs . . . [h]e falls squarely within the rule that when an internal appeal is open to him he has no right to invoke the aid of the courts.” (Holderby, supra, 45 Cal.2d at p. 849.) Our high court has subsequently reaffirmed that the “pursuit of internal relief is excused when [an organization] violates its rules for review . . . .” (Mooney v. Bartenders Union Local No. 284 (1957) 48 Cal.2d 841, 844.)

2. The evidence was sufficient to raise a triable issue of material fact that Western did not observe its own appellate grievance procedures

The following facts were undisputed: “Western’s Faculty Handbook gave Plaintiff several ways in which to try and resolve her breach of contract claim. Subsection 2 of the Grievance Procedure states that ‘[t]he first attempt to resolve this issue is an appeal from the faculty to the appropriate Dean within 2 months of the incident. The Dean has 20 working days to respond.’ ”

In a letter dated April 28, 2017 and signed by Abracosa, Western terminated Charles. The next day, on April 29, 2017, Charles wrote Dean Nelson in an effort to resolve her termination. That letter to Dean Nelson was sufficient to raise the inference that Charles took the first step in the grievance process set forth in appendix II’s “Grievance Procedures.” Specifically, she “appeal[ed] . . . to the appropriate Dean within 2 months of the incident.” Western recognized Charles’s letter as an appeal because it described the “Dean’s response to her appeal” in multiple statements of undisputed material fact.

After Charles’s appeal to Dean Nelson, the next step in the grievance procedure required Dean Nelson to respond within 20 working days. As noted earlier, the grievance procedure in the faculty handbook provides: “The Dean has 20 working days to respond.” Charles testified in her deposition that she appealed to the Dean “but that the Dean failed to respond . . . as required by the grievance procedures.” Charles testified that she “was trying to get a response from the Dean . . . .” When asked if he responded within 20 working days to Charles’s inquiry, Dean Nelson testified, “I don’t believe so.”

The evidence in our factual background demonstrates that there was a triable issue of material fact supporting the inference that Western did not follow the appeal provisions of its own grievance procedures despite Charles’s timely efforts to invoke them. There was thus a triable issue of fact whether Western’s failure to do so excused Charles from proceeding to the next level in appendix II’s grievance procedures.

The correspondence detailed in our factual background raises the inference that at best, Dean Nelson had good intentions to respond, but never did so, let alone in the timeframe required by Western’s Grievance Procedure except for acknowledging Charles’s “hurt” and “distrust,” and conceding that Western failed to follow its own procedures in terminating her. Put differently, absent two parties at the table to discuss the grievance, the very policies that the exhaustion doctrine serves could not be effectuated. We express no opinion on whether the trier of fact would find that Western’s conduct excused Charles from exhausting her internal administrative remedies. We only conclude that there were triable issues of fact precluding summary judgment on this issue.

For all these reasons, the trial court erred in summarily adjudicating Charles’s cause of action for breach of contract.

C. Charles Demonstrates No Error In Summarily Adjudicating Her Causes of Action Under the FMLA and CFRA Because Charles Did Not Have the Required Service Hours
D.
Under the FMLA, an eligible employee is entitled to 12 workweeks of leave during a 12-month period to care for a spouse who has a serious health condition. (29 U.S.C. § 2612, subd. (a)(1)(C).) The CFRA is similar. “Generally, the 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).)” (Faust v. California Portland Cement Co. (2007) 150 Cal.App.4th 864, 878.)

To be eligible for leave under the FMLA, an employee is required to work “at least 1,250 hours of service with such employer during the previous 12-month period.” (29 U.S.C.A. § 2611, subd. (2)(A)(ii).) The same requirement applies under the CFRA. Government Code section 12945.2, subdivision (a) provides in pertinent part: “Except as provided in subdivision (b), it shall be an unlawful employment practice for any employer, as defined in paragraph (2) of subdivision (c), to refuse to grant a request by any employee with more than 12 months of service with the employer, and who has at least 1,250 hours of service with the employer during the previous 12 month period . . . to take up to a total of 12 workweeks in any 12-month period for family care and medical leave.”

Because the CFRA contains nearly identical provisions to the FMLA, courts routinely rely on federal authority when reviewing a CFRA claim. (Rogers v. County of Los Angeles (2011) 198 Cal.App.4th 480, 487.) Here, Charles expressly concedes that the calculation of her hours of service is the same under both Acts.

Under the FMLA, to calculate the number of hours worked for an employer, “The determining factor is the number of hours an employee has worked for the employer . . . . The determination is not limited by methods of recordkeeping, or by compensation agreements that do not accurately reflect all of the hours an employee has worked for or been in service to the employer. Any accurate accounting of actual hours worked under . . . may be used. (29 C.F.R., § 825.110(c)(1).)

Courts employ standards developed under the Fair Labor Standards Act (FLSA) to determine whether an employee has the required hours of service to be eligible for leave. (Plumley v. Southern Container, Inc. (2002) 303 F.3d 364, 371 (Plumley).) “One of these standards, enunciated long ago by the Supreme Court, is that ‘work’ for purposes of the FLSA means “physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer . . . .’ ” (Id. at pp. 370–371.) Thus, courts assess whether “the employer was benefitted to determine if particular hours are covered.” (Id. at p. 371.)

The parties agree that to qualify for leave under either the CFRA or FMLA, Charles was required to work 1,250 hours in the 12 months preceding her request. Western argues that as a matter of law, Charles did not work 1,250 hours.

Western presented evidence of Charles’s ineligibility for FMLA/CFRA leave based on Charles’s failure to work 1,250 hours in the year preceding her request. The evidence was sufficient to satisfy Western’s initial burden in moving for summary adjudication of showing that Charles could not establish a prerequisite to her FMLA and CFRA causes of action. Charles does not argue otherwise.

The following evidence was undisputed: Charles requested to work part time. Beginning on November 1, 2014, Charles’s employment was reduced to 20 hours per week. Charles spent “summer months in 2016 studying for her radiology board exam because during the summer months, she did not have job duties on campus, and her workload was ‘significantly reduced.’ ” “Western’s Banner payroll report indicated that Plaintiff had worked a total of 1,012 hours during that time period” of one year prior to Charles’s request for FMLA/CFRA leave. Administrative Associate Mast informed Charles that she did not qualify for FMLA/CFRA leave because she had not worked 1,250 hours and Charles did not argue that she otherwise qualified for FMLA/CFRA leave.

On appeal, Western contends, “Charles’ own admissions confirmed that she could not, as a matter of law, have worked the requisite hours.” Western points out that Charles requested reducing her work schedule to 20 hours a week to study for, and take her board examination, and did not claim benefits available only to employees who worked 30 hours a week. With respect to Charles’s calculation, Western argued that the 232 hours spent on her board examination should not be included.

As set forth above, the trial court agreed with Western and excluded those 232 hours. Charles has the burden to demonstrate error on appeal. (Paslay, supra, 248 Cal.App.4th at p. 644.) To that end, Charles argues that the 232 hours that she spent studying for her board examination and taking the examination should be included in her working hours because (1) she studied during regular work hours; (2) the certification was related to her job; and (3) the college would obtain a benefit from her “improved qualifications.” According to Charles’s own calculations, without the inclusion of these 232 hours spent on studying for and taking the board examination, she would not have reached the 1,250-hour threshold.

Charles fails to explain how her statement that she studied during regular work hours is relevant to whether her studying was “necessarily and primarily for the benefit of ” Western. (Plumley, supra, 303 F.3d at p. 371, italics omitted.)

Even if she could make that showing, her statement is inconsistent with the parties’ following undisputed facts. When Charles was hired as an assistant professor, she “understood that she was expected to work 40 hours per week in her new role as Assistant Professor.” “After failing the Preliminary Exam for the third consecutive year, Plaintiff approached Western and asked to return to working part-time so that she could prepare to take her Preliminary Exam a fourth time the following fall.” Western agreed to Charles’s request and reduced her work schedule to 20 hours a week. Charles was a 50 percent (full time equivalent) employee. “Plaintiff ’s schedule changed with the reduction to 20 hours per week namely by limiting Plaintiff ’s on-campus days to 2 days per week.” Thus, based on the undisputed facts, Charles did not study during her regular work week. She specifically reduced her working hours and presence on campus to have time to study.

Charles fails to cite any evidence to support her arguments that the certification was related to her job and that the college would obtain a benefit from her “improved qualifications.” The evidence is to the contrary. Charles averred in her declaration that “passing the Board Certification examination was never made a condition of my continued employment by Western.” This was evident when despite failing the exam three times, she did not lose her job. Also, Charles describes her job responsibilities as follows: “reviewing films, teaching courses, responding to students, writing course material, writing exams, making rounds, and supporting the clinical needs of the University.” Her own description does not include studying for her certification examination. In sum, Charles fails to raise a triable issue of fact that the time she spent studying for and taking her board examination was “ ‘necessarily and primarily for the benefit of the employer . . . .’ ” (Plumley, supra, 303 F.3d at p. 371, italics omitted.)

Finally, the only legal authority Charles cites for the proposition that studying for and taking a board examination should be included as work performed for Western does not support her argument. Charles relies on 29 C.F.R. sections 785.27 and 785.29. Section 785.27 provides: “Attendance at lectures, meetings, training programs and similar activities need not be counted as working time if the following four criteria are met: (a) Attendance is outside of the employee’s regular working hours; [¶] (b) Attendance is in fact voluntary; [¶] (c) The course, lecture, or meeting is not directly related to the employee’s job; and [¶] (d) The employee does not perform any productive work during such attendance.” Section 785.27 does not concern studying or taking a board or similar examination, and therefore does not assist Charles.

29 C.F.R. section 785.29 provides: “The training is directly related to the employee’s job if it is designed to make the employee handle his job more effectively as distinguished from training him for another job, or to a new or additional skill. For example, a stenographer who is given a course in stenography is engaged in an activity to make her a better stenographer. Time spent in such a course given by the employer or under his auspices is hours worked. However, if the stenographer takes a course in bookkeeping, it may not be directly related to her job. Thus, the time she spends voluntarily in taking such a bookkeeping course, outside of regular working hours, need not be counted as working time. Where a training course is instituted for the bona fide purpose of preparing for advancement through upgrading the employee to a higher skill, and is not intended to make the employee more efficient in his present job, the training is not considered directly related to the employee’s job even though the course incidentally improves his skill in doing his regular work.”

Here, time Charles spent on her board exam was not time spent in a training or course given by Western or under its auspices, nor was board certification a requirement of her job. Charles fails to explain the applicability of 29 C.F.R. section 785.29 to hours spent on the board exam.

In short, Charles does not show the trial court erred in excluding the 232 hours attributable to Charles’s studying for and taking the board examination. Charles does not dispute that she would fail to meet the FMLA’s and CFRA’s 1,250-hours requirement without including these hours. Thus, Charles fails to raise a triable issue of material fact that she was eligible for leave under either the FMLA or CFRA.

DISPOSITION

The judgment is reversed to the extent it summarily adjudicates Charles’s cause of action for breach of contract. In all other respects, the judgment is affirmed. Charles is entitled to costs on appeal.

NOT TO BE PUBLISHED.

BENDIX, J.

We concur:

CHANEY, Acting P. J.

WEINGART, J.*