Walls v. Cent. Contra Costa Transit Auth.

• Citation: 32 IER Cases 961,94 Empl. Prac. Dec. P 44245,11 Cal. Daily Op. Serv. 9835,2011 Daily Journal D.A.R. 11681,17 Wage & Hour Cas.2d (BNA) 1697,653 F.3d 963
• Decision Date: 03 August 2011
• Docket Number: No. 10–15967.,10–15967.
• Parties: Kerry WALLS, Plaintiff–Appellant,v.CENTRAL CONTRA COSTA TRANSIT AUTHORITY, Defendant–Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

653 F.3d 963
94 Empl. Prac. Dec. P 44,245
32 IER Cases 961
17 Wage & Hour Cas.2d (BNA) 1697
11 Cal. Daily Op. Serv. 9835
2011 Daily Journal D.A.R. 11,681

Kerry WALLS, Plaintiff–Appellant,
v.
CENTRAL CONTRA COSTA TRANSIT AUTHORITY, Defendant–Appellee.

No. 10–15967.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 13, 2011.Filed Aug. 3, 2011.

[653 F.3d 965]

William James Flynn, Benjamin Kerl Lunch, Neyhart, Anderson, Flynn & Grosboll, San Francisco, CA, for the plaintiff-appellant.Mark Gabel, Patrick McPike Glenn, Molly Anne Lee, Hanson Bridgett LLP, San Francisco, CA, for the defendant-appellee.Appeal from the United States District Court for the Northern District of California, Phyllis J. Hamilton, District Judge, Presiding. D.C. No. 4:08–cv–00224–PJH.Before: BETTY B. FLETCHER and SIDNEY R. THOMAS, Circuit Judges, and LEE H. ROSENTHAL, District Judge.^*

[653 F.3d 966]

OPINION PER CURIAM:

Plaintiff–Appellant Kerry Walls (“Walls”) appeals the district court's grant of summary judgment in favor of Defendant–Appellee Central Contra Costa Transit Authority (“CCCTA”). Walls is a former bus driver for CCCTA. After being terminated on January 27, 2006, Walls was reinstated on March 2, 2006 pursuant to an agreement executed over the course of a grievance process between Walls, his union representative, and CCCTA (“Last Chance Agreement” or “Agreement”). On March 3, 2006, Walls incurred an unexcused absence that violated the attendance requirements of the Agreement. As a result, CCCTA again terminated Walls on March 6, 2006.

After grieving his termination, Walls brought this suit, claiming that his March 6 discharge violated the Family Medical Leave Act (“FMLA”) and his due process right to a pretermination hearing under the United States and California Constitutions. The parties filed cross-motions for summary judgment. The district court granted summary judgment in favor of CCCTA on both claims, reasoning that Walls was not an employee eligible for FMLA benefits when he requested leave, and that he had waived his due process rights. Walls timely appealed. Additional facts are noted where relevant.

We have jurisdiction under 28 U.S.C. § 1291, and we affirm in part and reverse and remand in part.

I.

A district court's grant of summary judgment is reviewed de novo. Davis v. City of Las Vegas, 478 F.3d 1048, 1053 (9th Cir.2007) (citing Buono v. Norton, 371 F.3d 543, 545 (9th Cir.2004)). Federal Rule of Civil Procedure 56(a) provides that a movant is entitled to summary judgment where “there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” In evaluating the evidence to determine whether there is a genuine issue of fact, we draw all inferences supported by the evidence in favor of the non-moving party. Guidroz–Brault v. Mo. Pac. R.R. Co., 254 F.3d 825, 829 (9th Cir.2001).

II. A.

The FMLA entitles an “eligible employee” to twelve workweeks of leave for certain family and health-related situations. 29 U.S.C. § 2612. “The term ‘eligible employee’ means an employee who has been employed (i) for at least 12 months by the employer with respect to whom leave is requested....” Sullivan v. Dollar Tree Stores, Inc., 623 F.3d 770, 780 (9th Cir.2010) (citing 29 U.S.C. § 2611(2)(A)) (internal quotation marks omitted). Therefore, FMLA rights and benefits are contingent upon the existence of an employment relationship. See Smith v. BellSouth Telecomm., Inc., 273 F.3d 1303, 1311 (11th Cir.2001) (the right to FMLA leave “obviously cannot be exercised after the termination of an employment relationship”).

In order to establish an FMLA violation, the employee must demonstrate that the employer received sufficient notice of an employee's intent to take FMLA leave. See Sanders v. City of Newport, 657 F.3d 772, 969–70 (9th Cir.2011). An employer that refuses to reinstate an employee who takes FMLA-protected leave unlawfully interferes with the employee's FMLA rights. See id. at 968–70.

Walls argues that his termination on March 6, based upon his March 3 absence, interfered with his FMLA rights because he was entitled to protected leave on the basis of a verbal request he made

[653 F.3d 967]

during a March 1, 2006 meeting with his union representative and CCCTA. Although the parties provide different accounts of Walls's communication with CCCTA at the March 1 meeting, they agree for purposes of summary judgment, that, at this meeting, Walls verbally requested to be absent from work until April 10. They also agree that Walls was not reinstated to his position until March 2, when he signed and executed the Last Chance Agreement. Therefore, he had not yet been reinstated to employment when he made his request for leave.

Walls argues, however, that the Last Chance Agreement retroactively changed his status and rendered him an FMLA eligible employee on March 1. While Walls makes a novel legal argument, the facts of this case, and the terms of the Last Chance Agreement, do not support his position. As an undisputed matter of fact, Walls was no longer employed at CCCTA on March 1, the day he requested medical leave. The Last Chance Agreement says nothing of, and does nothing to change, Walls's status on this date. The Agreement states only that the period from January 20, 2006 to January 27, 2006 would be changed to an unpaid suspension; it does not expressly revoke the fact of Walls's termination on January 27. That Walls was reinstated to his previous level of seniority also does not change the fact that he was not employed at CCCTA on March 1, the day before his reinstatement. Therefore, we have no basis on which to conclude that the Agreement altered Walls's status on March 1 for purposes of the FMLA.

Accordingly, even if a reinstatement agreement could, as a legal matter, retroactively change a former employee's status from terminated to “eligible employee” for purposes of the FMLA,¹ the terms of this Last Chance Agreement clearly do not have such effect. We agree with the district court that Walls was not an employee of CCCTA when he made his request for leave and, therefore, cannot invoke FMLA protection on the basis of this request.

Walls additionally argues that, even if he was not an...