Escriba v. Foster Poultry Farms, Inc.

• Decision Date: 25 February 2014
• Docket Number: Nos. 11–17608,12–15320.,s. 11–17608
• Parties: Maria ESCRIBA, Plaintiff–Appellant–Cross–Appellee, v. FOSTER POULTRY FARMS, INC., Defendant–Appellee–Cross–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

743 F.3d 1236

Maria ESCRIBA, Plaintiff–Appellant–Cross–Appellee,

v.FOSTER POULTRY FARMS, INC., Defendant–Appellee–Cross–Appellant.

Nos. 11–17608, 12–15320.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted Nov. 7, 2013.

Filed Feb. 25, 2014.

Robert Borton, Elizabeth Kristen (argued), Sharon Terman (argued), The Legal Aid Society–Employment Law Center, San Francisco, CA, for Plaintiff–Appellant/Cross–Appellee.

Julia A. Follansbee, Follansbee & Associates, Bend, OR; Carmine R. Zarlenga (argued), Michael B. Kimberly, Mayer Brown LLP, Washington, D.C., for Defendant–Appellee/Cross–Appellant.

Jonathan J. Frankel, Steese, Evans & Frankel, P.C.; Sarah Crawford, Abigail Cook–Mack, National Partnership for Women & Families, Washington, D.C., for Amicus Curiae National Partnership for Women & Families, A Better Balance, California Women's Law Center, Equal Rights Advocates, National Employment Lawyers Association, National Women's Law Center, and 9to5, National Association of Working Women.

Appeal from the United States District Court for the Eastern District of California, Lawrence J. O'Neill, District Judge, Presiding. D.C. No. 1:09–cv–01878–LJO–MJS.

Before: SIDNEY R. THOMAS, RONALD LEE GILMAN,^* and JOHNNIE B. RAWLINSON, Circuit Judges.

OPINION

GILMAN, Senior Circuit Judge:

Maria Escriba worked in a Foster Poultry Farms, Inc. (Foster Farms) processing plant in Turlock, California for 18 years. She 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. Escriba subsequently filed suit under the Family and Medical Leave Act (FMLA) and its California equivalent.

The parties dispute the characterization of Escriba's request for a two-week period of leave. Escriba claims that her termination is an unlawful interference with her rights under the FMLA. Foster Farms responds that, although Escriba provided an FMLA-qualifying reason for taking leave, she explicitly declined to have her time off count as FMLA leave. The district court characterized the case as a classic “he said, she said” matter focused on what Escriba told her supervisors. Escriba's claims therefore proceeded to a jury trial in 2011.

Before Escriba's claims were submitted to the jury, both parties moved for judgment as a matter of law (JMOL). The district court denied Foster Farm's motion and took Escriba's under advisement, pending the jury's determination. After the jury returned a verdict in favor of Foster Farms, Escriba renewed her motion for JMOL and requested a new trial. The district court denied both motions.

Foster Farms, as the prevailing party, then moved to tax costs against Escriba. The district court declined to do so.

Both parties have timely appealed the respective adverse rulings against each of them. For the reasons set forth below, we AFFIRM the judgment of the district court on all issues.

I. BACKGROUND

A. Factual background

On November 19, 2007, Escriba met with her immediate supervisor, Linda Mendoza, to request time off to care for her ailing father in Guatemala. This meeting occurred four days before Escriba left for Guatemala on November 23 and approximately three weeks after she learned of her father's illness. Before Escriba's meeting with Mendoza, Escriba's daughter had purchased round-trip airfare for Escriba with a return date of December 27, 2007. This month-plus gap between November 23 and December 27 obviously conflicts with Escriba's request for a two-week vacation. At trial, Escriba explained that the discrepancy was simply the result of her daughter “pa[ying] for my ticket for that time. If [Foster Farms] did not give me more time [off], I would call the airlines so that I could come back sooner.”

Escriba maintains that, on November 19, she asked Mendoza for time off, requesting “Linda, please for me, Linda, for me, vacation.” She also claims that she told Mendoza that her “father is no good.... [and] is in [a] hospital in Guatemala.” After hearing this, Mendoza apparently responded: “Okay, Maria, you vacation,” after which Escriba “left it at that and [ ] went to work.”

A short time later, Mendoza gave Escriba a piece of paper detailing the leave request and said: “Maria, two week[s] of vacation for you.” Escriba maintains that she responded: “Please one week or two week free for me,” to which Mendoza replied: “No, Maria.” According to Escriba, the phrase “one week or two week free for me” meant that she sought unpaid leave in addition to the two-week paid vacation. This conversation between Escriba and Mendoza occurred in English because Mendoza does not speak Spanish.

Mendoza testified that she followed up her conversation with Escriba two days later, on November 21. This time Mendoza included Alfonso Flores, another Foster Farms supervisor, who acted as an interpreter. Mendoza testified that she asked Flores to act as an interpreter “to make sure [Escriba] could understand what I was asking.” Flores then asked Escriba if “she need[ed] more time” in Guatemala to care for her father, to which Escriba responded “no.” After hearing that Escriba was not requesting additional time in Guatemala, Mendoza asked Flores to repeat the question. Escriba again answered “no.” Flores corroborates Mendoza's testimony, confirming that Escriba twice stated that she did not need or want more than two weeks of leave. Escriba herself admitted during cross-examination that she requested the leave from Mendoza (and not from Foster Farms's Human Resources Department) because she intended to request vacation time, not “family leave to go to Guatemala.”

After hearing Escriba refuse additional leave, Mendoza filled out Escriba's vacation paperwork. Mendoza then told Escriba, in English, that Escriba would need to visit the Human Resources Department if she later decided to request more than two weeks of leave. By directing Escriba to Human Resources, Mendoza believed that she “was telling [Escriba] if the vacation that [Mendoza was] granting [was] not sufficient, then [Escriba had to] go to HR and discuss it with them further.”

Escriba testified that she then visited Ed Mendoza, the Foster Farms facility superintendent (who is not related to Linda Mendoza) because he spoke Spanish. She handed over her vacation slip and explained: “I'm on my way to Guatemala ... [b]ecause my dad is very ill.” Escriba allegedly revealed that “I only am going with two weeks vacation” before adding that “I wanted to know if [you] could do me a favor and give me one or two weeks more leave.” According to Escriba, Ed Mendoza said that he could not provide additional leave, but told her to bring a doctor's note when she returned to work.

Ed Mendoza's account of his conversation with Escriba differs in several material respects. He testified that Escriba asked “strictly” for “vacation time” and not “family leave.” When Escriba asked Ed Mendoza what she needed to do if she was unable to return by December 10, 2011, Ed Mendoza testified that he told her “to fax or send a note or some documentation to the human resources office.” He did not instruct Escriba regarding her rights and obligations under the FLMA or take any steps to designate her time off as FMLA leave.

After securing two weeks of leave, Escriba traveled to Guatemala to care for her father. She testified that, shortly after arriving, she decided that returning to work on December 10, 2007 would be impractical. Escriba said on direct examination that she attempted to contact her supervisors at Foster Farms to extend her leave, but on cross-examination contradicted herself:

Question: Why didn't you call your employer to let them know that you would not be coming back by the 10th?

Answer: I just couldn't think about it. I didn't remember.

Escriba v. Foster Poultry Farms, Inc., No. 1:09–CV–1878, 2011 WL 4565857, at *8 (E.D.Cal. Sept. 29, 2011). Escriba also conceded on cross-examination that she had periodic contact during this time frame with her husband, who also worked at Foster Farms, yet she never asked him to contact the company's Human Resources Department on her behalf:

Question: While you were at Guatemala in November and December of 2007, you talked to your husband on the telephone; isn't that correct?

Answer: Yes.

Question: And your husband was working at Foster Farms at that time; is that right?

Answer: Yes.

...

Question: Does he use the same office of personnel that you use?

Answer: Yes.

Question: So while you were in Guatemala and talking to your husband from time to time, did you ask him to go to the department of personnel at Foster Farms and tell them on your behalf that you would not be coming back?

Answer: No.

Id.

After failing to make contact, Escriba did not speak to anyone affiliated with Foster Farms about extending her leave until she spoke to her union representative on December 21, 2007. This conversation occurred 16 days after she was scheduled to return to work. The union representative informed Escriba that she would likely be terminated under Foster Farms's “three day no-show, no-call rule.” Under this policy, an employee is automatically terminated if he or she is absent for a period of three work days without notifying the company or without seeking a leave of absence.

The “three day no-show, no-call rule” was not the only Foster Farms policy discussed at trial. Foster Farms also introduced its employee-leave policy that 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. John Dias, a labor relations manager with Foster Farms, testified that if an employee elects to take vacation time and expressly declines FLMA-protected leave, the company “can't force [the employee] to take a leave if they're requesting to take the...