Wednesday, April 23, 2014

9th Circuit Affirms Summary Judgment, Holding Employee Can Affirmatively Decline Use of FMLA Leave

In another case highlighting how tricky and complex FMLA leave can be, the Court of Appeals for the Ninth Circuit  affirmed a district court's judgment, after a 6-day jury trial, denying plaintiff's motion for summary judgment because an employee can affirmatively decline to use FMLA leave, even if the underlying reason for seeking leave would have invoked FMLA protection.  The Court also held that the district court did not err in denying the plaintiff's motion for judgment as a matter of law because, viewing the evidence in the light most favorable to the jury's verdict, there was substantial evidence that the plaintiff elected not to take FMLA leave.

As is the case with almost all employment law matters, the facts of this case are important in understanding the 9th Circuit's decision:

The plaintiff, Maria Escriba, worked for the defendant, Foster Poultry Farms, Inc., a processing plant in California, for 18 years and was terminated in 2007 for failing to comply with the company's "three day no-show, no-call rule" after the end of a previously approved period of leave, which she took to care for her ailing father in Guatemala.

The reason this matter survived summary judgment and went to a jury trial is because there was a material dispute of fact concerning the characterization of Escriba's request for a two-week period of leave and whether she affirmatively declined FMLA leave.  Escriba filed suit under the FMLA and its California state law equivalent claiming her termination was an unlawful interference with her rights under the FMLA.  Foster Farms contended that, although Escriba provided an FMLA-qualifying reason for taking leave, she explicitly declined to have her time off count as FMLA leave.

The facts are discussed for 5 pages in the opinion but the key fact was Foster Poultry Farms' leave policy which requires an employee who requests FMLA-protected leave to first exhaust paid vacation time.  The initial paid leave runs concurrently, counting against both an employee's balance of vacation time and his or her FMLA-protected leave.  A labor relations manager with Forest Farms testified that if an employee elects to take vacation time and expressly declines FMLA-protected leave, the company "can't force [the employee] to take a leave if they're requesting to take the availability of their vacation because that would be reducing a benefit that [the employee] would have."  By first exhausting paid vacation time, an employee thus preserves the balance of any and all available FMLA time.  This fact became key as ultimately the jury believe Escriba sought to preserve all of her FMLA leave time by first taking paid vacation time and expressly declining FMLA leave in the beginning.

Because Escriba never later sought to take FMLA leave, she was terminated per Forest Poultry's attendance policy.  However, Escriba unsuccessfully attempted to argue that she was automatically entitled to FMLA leave during her entire time because Forest Poultry was aware her leave was for a reason that qualified under the FMLA.  However, the 9th Circuit ultimately held that an employee can affirmatively decline to use FMLA leave, even if the underlying reason for seeking the leave would have invoked FMLA protection.

The case is Escriba v. Foster Poultry Farms, Inc., 2014 BL 50661, 9th Cir., No. 11-17608, 2/25/14).

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