Ninth Circuit Upholds Verdict Against Worker Who Expressly Declined Use of FMLA Leave

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By Jay-Anne B. Casuga  

Feb. 26 --The U.S. Court of Appeals for the Ninth Circuit Feb. 25 upheld a jury verdict that a California poultry farm didn't violate the Family and Medical Leave Act and California law when it fired a worker after she failed to return from a “vacation” to care for her ill father in Guatemala because she had declined to use FMLA leave, possibly to preserve it for future use (Escriba v. Foster Poultry Farms, Inc., 2014 BL 50661, 9th Cir., No. 11-17608, 2/25/14).

Affirming the denial of summary judgment and judgment as a matter of law to Maria Escriba, the appeals court found that the FMLA's implementing regulations, which require employers to inquire as to whether an employee is seeking FMLA leave, “strongly” suggest that “there are circumstances in which an employee might seek time off but intend not to exercise his or her rights under the FMLA.”

For example, the court said, Foster Poultry Farms Inc. presented evidence that its policy requiring unpaid FMLA leave to run concurrently with paid vacation time may motivate some employees to first exhaust their paid leave before invoking their FMLA rights in order to retain the full statutory allotment.

“We thus conclude 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 Ninth Circuit said.

It also rejected Escriba's contention that allowing an employee to expressly decline FMLA leave would constitute an impermissible waiver, pointing out the difference between a permanent relinquishment of a statutory right and a decision to preserve the right for later use.

Substantial evidence supports the jury's verdict that Escriba had requested a two-week vacation to care for her father and repeatedly answered in the negative when supervisors asked her if she needed additional leave, the court said. It found that the FMLA did not protect Escriba from termination when she didn't return from Guatemala and violated Foster Farms's three-day, “no show, no call” policy.

Judge Ronald L. Gilman wrote the opinion, joined by Judges Sidney R. Thomas and Johnnie B. Rawlinson.

Requested Vacation to Care for Father

Escriba worked at a Foster Farms processing plant in Turlock, Calif., for 18 years, earning an average of $11,622 per year, the court said. Throughout her employment, Escriba requested and received FMLA leave from the company's human resources department on 15 occasions.

In November 2007, Escriba spoke to her supervisor, Linda Mendoza, to request time off to care for her ill father in Guatemala. Escriba, whose second language is English, allegedly said: “Linda, please for me, Linda, for me, vacation.”

She further explained that her “father is no good,” and that he was in a hospital in Guatemala. Mendoza, who spoke only English and no Spanish, responded with, “Okay, Maria, you vacation.”

Mendoza placed Escriba's leave request in writing and told Escriba: “Maria, two week[s] of vacation for you.” Escriba replied with “please one week or two week free for me,” which purportedly meant she was asking for unpaid leave in addition to two weeks of paid vacation. Mendoza rejected that request.

Two days later, Mendoza again met with Escriba, this time along with another supervisor, Alfonso Flores, who spoke Spanish and could act as an interpreter. Mendoza twice asked Escriba, through Flores, if she needed more time than two weeks in Guatemala to care for her father. Escriba replied, “no,” both times.

Mendoza completed Escriba's vacation paperwork and told her to contact HR if she later decided she needed more leave.

“We thus conclude 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 Ninth Circuit said.  


Escriba claimed that she later met with Ed Mendoza, a facility supervisor, explained in Spanish that she was going to Guatemala because of her father's illness and asked him for more leave. Ed Mendoza said he could not provide additional leave but instructed her to submit a doctor's note upon her return to work.

Escriba left for Guatemala Nov. 23 and was scheduled to return Dec. 10. However, she remained in Guatemala and did not contact her supervisors. She ultimately was terminated for violating Foster Farms's “three day no-show, no-call rule.”

Jury Returned Verdict for Farm

Escriba sued Foster Farms in October 2009, alleging that the company interfered with her rights under the FMLA and the California Family Rights Act, which is governed by identical legal standards as its federal counterpart.

The U.S. District Court for the Eastern District of California in June 2011 denied summary judgment to Escriba and Foster Farms on the issue of whether Escriba invoked or declined the FMLA's protections when she requested time off to go to Guatemala.

The court conducted a trial in July 2011, and the jury returned a verdict in favor of Foster Farms. The district court denied Escriba's posttrial motion for judgment as a matter of law and denied Foster Farms' request to recover about $14,000 in costs from Escriba. Both parties appealed.

Court Affirms Denial of Summary Judgment 

The Ninth Circuit first addressed Escriba's challenge to the district court's denial of her motion for summary judgment.

She argued that when she notified both Linda Mendoza and Ed Mendoza about her need for time off to take care of her ill father, the FMLA's protections automatically were triggered regardless of whether she expressly declined to designate her requested absence as FMLA leave.

The text of the FMLA does not expressly state whether a worker may defer his or her statutory leave rights, the appeals court said.

However, it said the Labor Department's implementing regulations provide that when an employee requests leave for what appears to be an FMLA-qualifying reason, the employer is expected to engage in an informal process to obtain additional information about whether the worker is seeking FMLA leave.

“An employer's obligation to ascertain 'whether FMLA leave is being sought' strongly suggests that there are circumstances in which an employee might seek time off but intend not to exercise his or her rights under the FMLA,” the court said.

Employers would be placed in an “untenable situation” if a worker's mere reference of an FMLA-qualifying reason triggers the law's protections, and that employee states a desire not to take FMLA leave, the court said.

“The employer could find itself open to liability for forcing FMLA leave on the unwilling employee,” the court said. “We thus conclude that an employee can affirmatively decline to use FMLA leave, even if the underlying reason for seeking the leave would have invoked FMLA protection.”

In addition, the Ninth Circuit rejected Escriba's argument that allowing an employee to affirmatively decline FMLA leave is “tantamount to waiving it,” and that the DOL's regulations state that workers cannot waive their FMLA rights.

The court found that the rules also explain that “waiver” within the meaning of the FMLA means that an employee “cannot 'trade off' the right to take FMLA leave against some other benefit offered by the employer,” such as through a collective bargaining agreement.

“Foster Farms's contention, however, has never been that Escriba 'trade[d] off' her FMLA rights; rather, the company argued to the jury that Escriba affirmatively declined to exercise her FMLA rights in order to preserve her leave for future use,” the court said.

The court pointed to the testimony of a Foster Farms labor relations manager who explained that, under company policy, unpaid FMLA leave and paid vacation run concurrently. As such, a worker may elect to take only vacation time and expressly decline FMLA leave to preserve the full allotment of statutory leave.

Furthermore, a waiver also can be defined as the “voluntary relinquishment of a known right,” the court said. “[A]ffirmatively declining the present exercise of a right in order to preserve it for the future is fundamentally different from permanently relinquishing that right.”

Substantial Evidence Supports Verdict

Turning to the jury's verdict in favor of Foster Farms, the Ninth Circuit found substantial evidence that Escriba elected not to take FMLA leave.

For example, the court said, Escriba met with Linda Mendoza twice about her requested vacation--once with an interpreter--and replied, “no,” to repeated questions about her need for more leave.

A jury hearing this evidence could conclude that Linda Mendoza had made further inquiry about whether Escriba was seeking FMLA leave, and that her responses “clearly indicated that she did not intend to take FMLA leave,” the court said.

Escriba's use of FMLA leave on 15 prior occasions further raises an inference that “if Escriba had desired to take FMLA leave, she would have arranged for such leave with [HR],” the Ninth Circuit said, finding no error in the district court's decision to admit that evidence.

In addition, the appeals court said, the evidentiary record provides an explanation as to why Escriba might have declined FMLA leave--she might have been preserving such leave for future use.

“Under the facts of this case, if 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,” the court said. “A jury, hearing about Foster Farms's policies, could have easily concluded that Escriba sought to preserve future FMLA time.”

Moreover, the jury had “ample evidence” to rule in favor of Foster Farms because Escriba violated the company's “three day no-show, no-call rule,” the court said. “Escriba was obligated to comply with this nondiscriminatory company policy regardless of her reason for taking leave.”

Court Affirms Denial of Costs

Finally, the Ninth Circuit affirmed the district court's order denying litigation costs to Foster Farms. The court pointed to Escriba's “limited financial resources” and the “significant financial disparity” between her and the company.

The court found that the case involved “close issues of public importance” pertaining to the “parameters of what constitutes sufficient [FMLA] employee notice” and protecting “vital civil rights for women in the work place.”

Levying costs against Escriba would have a “chilling effect on future FMLA cases,” as low-wage earners “would be reluctant to file suit,” the court said.

Robert Borton, Elizabeth Kristen and Sharon Terman of the Legal Aid Society-Employment Law Center in San Francisco represented Escriba. Julia A. Follansbee of Follansbee & Associates in Bend, Ore., and Carmine R. Zarlenga and Michael B. Kimberly of Mayer Brown in Washington represented Foster Farms.


To contact the reporter on this story: Jay-Anne B. Casuga in Washington at

To contact the editor responsible for this story: Susan J. McGolrick at

Text of the opinion is available at

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