United States District Court, W.D. Washington, Seattle
ORDER GRANTING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
ROBERT S. LASNIK, District Judge.
This matter comes before the Court on "Defendant The Boeing Company's Motion for Summary Judgment." Dkt. # 42. Plaintiff alleges that the termination of his employment from Boeing on November 3, 2010, violated the Washington Family Leave Act and the Washington Law Against Discrimination. Complaint (Dkt. # 4) at ¶¶ 4.1 and 5.1. Defendant seeks dismissal of all of plaintiff's claims on the ground that plaintiff was fired because he violated Boeing's attendance policies, not because he utilized his WFLA rights or was disabled.
Summary judgment is appropriate when, viewing the facts in the light most favorable to the nonmoving party, there is no genuine issue of material fact that would preclude the entry of judgment as a matter of law. The party seeking summary dismissal of the case "bears the initial responsibility of informing the district court of the basis for its motion" ( Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986)) and "citing to particular parts of materials in the record" that show the absence of a genuine issue of material fact (Fed. R. Civ. P. 56(c)). Once the moving party has satisfied its burden, it is entitled to summary judgment if the nonmoving party fails to designate "specific facts showing that there is a genuine issue for trial." Celotex Corp. , 477 U.S. at 324. The Court will "view the evidence in the light most favorable to the nonmoving party... and draw all reasonable inferences in that party's favor." Krechman v. County of Riverside , 723 F.3d 1104, 1109 (9th Cir. 2013). Although the Court must reserve for the jury genuine issues regarding credibility, the weight of the evidence, and legitimate inferences, the "mere existence of a scintilla of evidence in support of the non-moving party's position will be insufficient" to avoid judgment. City of Pomona v. SQM N. Am. Corp. , 750 F.3d 1036, 1049 (9th Cir. 2014); Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 252 (1986). Factual disputes whose resolution would not affect the outcome of the suit are irrelevant to the consideration of a motion for summary judgment. S. Cal. Darts Ass'n v. Zaffina , 762 F.3d 921, 925 (9th Cir. 2014). In other words, summary judgment should be granted where the nonmoving party fails to offer evidence from which a reasonable jury could return a verdict in its favor. FreecycleSunnyvale v. Freecycle Network , 626 F.3d 509, 514 (9th Cir. 2010).
Having reviewed the memoranda, declarations, and exhibits submitted by the parties,  the Court finds as follows:
A. Washington Family Leave Act ("WFLA"), RCW 49.78 et seq.
The parties agree that the WFLA mirrors the provisions of the federal Family Medical Leave Act ("FMLA") and must, therefore, be construed to the extent possible in a manner that is consistent with the federal law. Dkt. # 42 at 10; Dkt. # 47 at 1 n.1. Plaintiff alleges that Boeing impermissibly used his WFLA-protected leave as a factor in the decision to terminate him. Adverse employment actions taken against an employee for exercising rights to which he is entitled under the medical leave act are construed as a claim that the employer has interfered with plaintiff's rights under the statute. See 29 U.S.C. § 2615(a)(1); Cheeks v. Gen. Dynamics , 22 F.Supp.3d 1015, 1040 (D. Ariz. 2014). In the Ninth Circuit, an employee will prevail on an interference claim if he shows "by a preponderance of the evidence that [the] taking of FMLA-protected leave constituted a negative factor in the decision to terminate [him. He] can prove this claim, as one might any ordinary statutory claim, by using either direct or circumstantial evidence, or both." Bachelder v. Am. W. Airlines, Inc. , 259 F.3d 1112, 1125 (9th Cir. 2001). See also Golez v. U.S. Postal Serv., 585 Fed.Appx. 365, 366 (9th Cir. 2014) (affirming judgment in favor of employer where employee failed to prove that his use of FMLA leave was "a negative factor in terminating his employment").
Although it is a very close question, there is evidence from which a reasonable jury could conclude that Boeing considered FMLA-protected leave as a negative factor when it made the decision to fire plaintiff. On Monday, October 11, 2010, plaintiff's manager submitted a "Manager Intake Form" to Human Resources noting a number of unexcused absences in the preceding six weeks. Dkt. # 43-1 at 43. Human Resources reviewed plaintiff's employment records between May 3, 2010, and October 8, 2010, and found fourteen full or partial absences, including six days for which plaintiff had provided medical documentation but had not followed the specified procedures for requesting FMLA leave. Dkt. # 44-1 at 47; Decl. of Kathryn Lykken (Dkt. # 44) at ¶ 8. According to Boeing's records, none of the fourteen absences was covered by vacation time, sick leave, FMLA, or an approved leave of absence. Decl. of Kathryn Lykken (Dkt. # 44) at ¶ 8. Boeing deemed these absences unacceptable and terminated plaintiff's employment, citing all of plaintiff's absences, including the ones for which medical documentation had been provided, in the notice of termination. Dkt. # 44-1 at 47.
Plaintiff argues that Boeing should have realized that all of the absences for which medical documentation had been provided qualified for coverage under the FMLA and that defendant improperly counted these absences as a negative factor when determining whether termination was appropriate It is undisputed that Boeing was aware of and considered the medically-documented absences in its decision to terminate plaintiff. Dkt. # 52-1 at 23. Defendant argues, however, that those absences were not protected by the FMLA because plaintiff did not provide notice in compliance with Boeing's policies.
The Department of Labor's FMLA regulations require an employee to "comply with the employer's usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances." 29 C.F.R. § 825.303(c). Boeing's Leaves of Absence Policy Handbook applies to a number of types of leave, but sets forth the following procedures with regards to FMLA leave:
If the need for leave is foreseeable, the employee must provide 30 days advance notice to the Boeing Leave Service Center through Boeing TotalAccess before an FMLA absence is to begin. If the need for the absence is not foreseeable, the employee must provide notice to Boeing TotalAccess within two business days after the start of the absence or per collective bargaining agreement. If timely notice is not received, FMLA coverage will be denied, and corrective action may be taken for unexcused absences, up to and including discharge...
Dkt. # 44-1 at 19. Plaintiff acknowledges that he did not submit a leave request through TotalAccess regarding his May and June absences, but argues that the failure should be excused because (a) he was unaware that FMLA leave could be used for short periods of time and (b) despite having provided medical documentation to excuse the absences, he was not advised that an additional step would be necessary to have the absence covered by the FMLA.
There is surprisingly little guidance on what circumstances qualify as "unusual" for purposes of 29 C.F.R. § 825.303(c). The regulations explain that, while an employer may require employees to call a designated number or a specific individual to request leave, such requirements have to give way until an employee's "condition is stabilized and he or she has access to, and is able to use, a phone." 29 C.F.R. § 825.303(c). Courts have deemed circumstances "unusual" when the medical condition or illness prevents compliance with the normal procedures (Howard v. VT Halter Marine, Inc., 2011 WL 2414672 (S.D.Miss. June 10, 2011)), the employee is unable to access a phone (Flores v. Murphy Co., 2014 WL 584553, at *6 (D. Or. Feb. 12, 2014)), the employer's policies conflict with the law ( Millea v. Metro-North R. Co. , 658 F.3d 154, 161-62 (2nd Cir. 2011)), or the employer has misled the employee is some way regarding the proper procedures (Uselton v. CSX Transp., Inc., 2014 WL 4388272, at *5 (N.D. Ohio Sept. 5, 2014)). "Other courts, without invoking the unusual-circumstances exception specifically, have nonetheless excused the employee for failing to comply with the employer's procedures where a fact issue existed about whether the employee gave adequate notice of the need for leave." Villegas v. Albertsons, LLC, 2015 WL 1137415, at *7 (W.D. Tex. Mar. 11, 2015) (collecting cases).
To the extent plaintiff is arguing that an employee's subjective misunderstanding or lack of awareness of an available procedure for requesting leave, unrelated to any ambiguity in written policy or misstatements on the part of the employer, satisfies the "unusual circumstances" exception, he has not identified, and the Court has not found, any case law supporting that proposition. The Court declines to adopt such a rule in this case. Boeing's FMLA notice procedures were available to plaintiff, specify the procedures to be used to give notice of the need for leave, and specifically state that FMLA leave can be "taken in separate increments of time due to a single illness or injury, rather than for one continuous period of time." Dkt. # 44-1 at 18-19. Even if, as plaintiff speculates, plaintiff's managers and the reviewing Human Resources specialists were unfamiliar with the definition of "serious health condition" under the FMLA, there is no indication that they communicated with plaintiff regarding this issue or misled him in this or any other regard.
The better argument, given the facts of this case, is that plaintiff did not understand that the FMLA might apply and therefore did not realize that he needed to submit a request for leave in TotalAccess. Employees are not expected to be familiar with the intricacies of the law: "[i]t is the employer's responsibility to determine when FMLA leave is appropriate, to inquire as to specific facts to make that determination, and to inform the employee of his or her entitlements." Xin Liu v. Amway Corp. , 347 F.3d 1125, 1134 (9th Cir. 2003). Plaintiff maintains that the information he provided regarding his absences on May 3, May 4, May 6, ...