Sick Leave Abuse or Family Medical Leave Act Violation

Today’s burning question: I was a probationary firefighter and needed to take time off because my wife and children were seriously ill. I used accrued sick and vacation leave, but my employer fired me. Do I have a case?

Answer: As a probationary employee you are considered to be an employee at-will. An employer can fire an at-will employee without just cause and without affording him/her due process. However, an employer cannot discriminate against an at-will employee, nor violate statutory rights granted by state and federal law.

That is the basis of a lawsuit being brought in California by Carlo Teruel against the American Canyon Fire Protection District and the City of American Canyon. Teruel was fired just before the end of his 18-month probationary period after he used accrued sick and vacation leave to care for his seriously ill wife and two young sons.

Teruel, 34, had been a career firefighter in Berkeley for 7 years before being hired by American Canyon Fire Protection District. He claims he was called into a meeting in his 17th month with the department and fired without explanation despite having met all the requirements of his probation. According to the complaint:

  • Despite pleading with Chief Weeks and Assistant Chief Lawson to tell him why they were terminating his employment, they refused to give him a reason.
  • Apart from the instances when Firefighter Teruel used his accrued sick leave to care for his wife and sons, there were numerous instances when his wife and/or sons came down with non-serious medical conditions.
  • During these occasions, Firefighter Teruel did not take any leave to care for his wife and sons because, as a trained paramedic, he was able to distinguish serious from non-serious medical conditions.
  • At no time did Firefighter Teruel take any leave to which he was not entitled, nor did he take any unpaid leave. On the contrary, each time that Firefighter Teruel took leave, he used either sick leave or vacation time.
  • At the time of Firefighter Teruel’s termination, he still had remaining 254.50 of accrued, but unused, vacation time.
  • To date, Defendants have repeatedly refused to provide Firefighter Teruel with a reason for why his employment was terminated, other than telling him that he did not pass probation.

The suit was filed January 31, 2017 in Napa County Superior Court, and contains four state law counts:

  • California Family Rights Act—Retaliation [California Government Code § 12945.2]
  • FEHA—Gender Discrimination [California Government Code § 12940, et seq.]
  • FEHA—Disability Discrimination [California Government Code § 12940, et seq.]
  • Sick Leave To Care For Kin—Retaliation [California Labor Code § 233]

The gender discrimination count is particularly interesting, alleging that as a male caregiver, Teruel is a member of a protected class within the meaning of California Government Code §§12926(r). The theory is that part of the reason Teruel was fired was for attending to his children, which is stereotypically considered to be “women’s work.”

The Times Herald quoted Teruel’s attorneys, Jennifer Liu and Sharon Vinick, as saying:

  • “Wanting to be there for his wife and young children, Firefighter Teruel took sick leave in order to care for them.”
  • “The lawsuit alleges that (fire district) management disapproved of Firefighter Teruel’s use of sick leave to care for his family. Seventeen months into his 18-month probationary period, even though he had received consistently positive feedback on his performance and had passed all of his tests, (the fire district) fired him.”
  • “There are still outdated attitudes in many industries, especially industries like fire fighting, that historically have hired mostly men, where people think men should be the breadwinners, and women should be the caregivers”
  • “We think it is a case of great interest — and importance — because it highlights the stigma and discrimination that men are facing in the workplace as they increasingly play more active roles as fathers.”
  • “We hope Firefighter Teruel’s case will establish that men should not have to risk their jobs in order to be active fathers.”

They also quoted Teruel as saying:

  • “It’s not about the money; it’s about clearing my name.”
  • “I feel my family got punished for needing me, and that’s just totally wrong. No hard-working parent should be subjected to this just because they wanted to take care of their family.”

Here is a copy of the complaint: 2017-01-31 Complaint

A big thank you to Attorney Jen Liu for the complaint.

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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