Metropolitan News-Enterprise


Wednesday, February 26, 2014


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Court Rules for Employer in Family Leave Controversy

Panel Says Employee’s Leave Not Statutorily Protected


By MICHAEL J. PEIL, Staff Writer


The Ninth U.S. Circuit Court of Appeals ruled yesterday that an employee can decline to use Family and Medical Leave Act leave, even if the reason for seeking the leave would invoke the act’s protections.

The panel, in an opinion by visiting Sixth Circuit Senior Judge Ronald Lee Gilman, affirmed a jury verdict in favor of Foster Poultry Farms, after its former employee, Maria Escriba, filed suit alleging violations of the Family and Medical Leave Act.

The trial court denied both parties motions for summary judgment, finding that there were triable issues of fact as to whether Escriba had invoked or declined the protections of the FMLA when she had informed her employer that she was taking leave.

Escriba argued that her motion should have been granted because, when she informed her supervisor that she needed time off to take care of her ailing father, she became automatically entitled to the protections of the FMLA.

Companies are required to designate eligible leave as “FMLA-protected,” she argued, regardless of whether an employee accepts or declines the statutory protection. She claimed therefore that the court erred by considering Foster Poultry Farm’s “legally impossible” contention that she affirmatively declined to take FMLA leave.

Gilman explained, however, that according to the Department of Labor’s promulgated FMLA regulations in 1995, after an employee alerts the employer of the desire to take leave, an employer is expected to investigate whether an employee seeks to take FMLA leave,

An employer’s obligation to gather more information about the type of leave being sought, Gilman reasoned, suggests that an employee might seek leave under the FMLA, but that the employee may also seek time off without intending to exercise those rights.

He said:

“And a compelling practical reason supports this conclusion. Holding that simply referencing an FMLA-qualifying reason triggers FMLA protections would place employers like Foster Farms in an untenable situation if the employee’s stated desire is not to take FMLA leave. The employer could find itself open to liability for forcing FMLA leave on the unwilling employee.”

Escriba had worked in Turlock, Calif., at a processing plant for Foster Poultry Farms for 18 years. On Nov. 19, 2007, she met with her supervisor, Linda Mendoza, to request time off to take care of her father in Guatemala. After securing two weeks of leave, she traveled to Guatemala.

 Upon her arrival in Guatemala, she testified that it would be impractical to return to work on December 10, but did not contact anyone at Foster Farms Poultry about extending her leave.

She was then terminated for failing to comply with company’s “three-day no-show, no-call rule.” Under the policy, employees are automatically terminated if they are absent for a period of three work days without notifying the company, or seeking a leave of absence.

Escriba alleged that the termination interfered with her rights under the FMLA. Foster Poultry Farms contended that while Escriba provided a “FMLA-qualifying” reason for taking leave, she explicitly declined to take that leave.

In 2011, after six days of trial, Escriba moved for a judgment as a matter of law, but the court reserved its judgment, and the jury returned a verdict in favor of Foster Poultry Farms.

The district court then denied Escriba’s renewed motion for JMOL, explaining that the evidence supported the jury’s finding that Escriba had “knowledge of FMLA leave and how to invoke it…[but] unequivocally refused to exercise that right.”

On appeal, Gilman agreed, explaining that the verdict was supported by evidence that Mendoza inquired about whether Escriba intended to take FMLA, and Escriba said that she did not on both occasions.

He concluded:

“[I]f Escriba purposefully deferred asking for FMLA leave until after the expiration of her paid leave, she would have had two more weeks of protected leave than if she had initially requested family leave. A jury, hearing about Foster Farm’s policies, could have easily concluded that Escriba sought to preserve future FMLA time.”

The court, however, upheld an order denying costs to Foster Farms, which sought $21,000 from the plaintiff. The order, which was based on the relative financial positions of the parties, the closeness of the legal issues, and the public policies underlying the statute, was not an abuse of discretion, the judge said.

In a press release, Carmine Zarlenga, a partner with Mayer Brown LLP, who represented Foster Poultry Farms at trial and on appeal, said:

 “We are very gratified that the Ninth Circuit agreed that by preserving an employee’s right to determine the status and type of their leave requests, both the employee and the employer benefit. Otherwise, the burden placed on employers would have been disproportionate, if not extreme.”

The Legal Aid Society-Employment Law Center, whose senior staff attorney, Sharon Terman, represented Escriba, said in a statement:

“While we are disappointed in the court’s ruling on the FMLA issue, we are pleased that the court rejected the attempt by Foster Farms, a multi-billion dollar company, to recover thousands of dollars in costs from an indigent client….[The court affirmed] that the imposition of costs on a low-wage worker like Ms. Escriba could chill enforcement of civil rights laws.”

The case is Escriba v. Foster Poultry Farms, Inc., 11-17608.


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