Ryman v. Sears, Roebuck and Company ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DANIEL RYMAN,  No. 06-35630
Plaintiff-Appellant,
v.  D.C. No.
CV-05-01106-BR
SEARS, ROEBUCK AND COMPANY,
OPINION
Defendant-Appellee.

Appeal from the United States District Court
for the District of Oregon
Anna J. Brown, District Judge, Presiding
Submitted September 25, 2007*
Portland, Oregon
Filed October 12, 2007
Before: Ferdinand F. Fernandez, Barry G. Silverman, and
Susan P. Graber, Circuit Judges.
Opinion by Judge Silverman
*The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
13899
RYMAN v. SEARS, ROEBUCK AND CO. 13901
COUNSEL
Keith D. Karnes, Olsen, Olsen & Daines, and Jason C.
McBride, Salem, Oregon, for the plaintiff-appellant.
Michael T. Garone and Jean Ohman Back, Schwabe, Wil-
liamson & Wyatt, Portland, Oregon, for the defendant-
appellee.
OPINION
SILVERMAN, Circuit Judge:
Today we reiterate the rule that when (1) a federal court is
required to apply state law, and (2) there is no relevant prece-
dent from the state’s highest court, but (3) there is relevant
precedent from the state’s intermediate appellate court, the
federal court must follow the state intermediate appellate
court decision unless the federal court finds convincing evi-
dence that the state’s supreme court likely would not follow
it.
I. FACTS
Plaintiff Daniel Ryman was fired by Sears for excessive
absences; at issue here is his absence from work on November
17, 2003. From November 14, 2003, through November 16,
2003, Ryman was on leave to care for his sick child, and this
absence was not counted against him by Sears. Ryman had
not received his upcoming work schedule before taking leave
and did not know whether he was scheduled to work on
13902 RYMAN v. SEARS, ROEBUCK AND CO.
November 17, 2003. He called a fellow employee, who incor-
rectly told Ryman that he was not scheduled to work on
November 17. As a result, Ryman neither reported for work
nor called in an absence that day. He accrued the correspond-
ing number of demerits pursuant to Sears’ attendance policy.
This took him over the limit allowed by the policy and,
shortly thereafter, he was fired. Ryman asserts that Sears vio-
lated the Oregon Family Leave Act (“OFLA”), OR. REV.
STAT. §§ 659A.150-659A.186, by penalizing him for an alleg-
edly protected family leave absence.
The district court did not reach the merits of Ryman’s
claim, because it ruled that OFLA does not provide a cause
of action for retaliation, or for anything other than an employ-
er’s denial of an eligible employee’s request for family leave.
In so ruling, the district court expressly declined to follow
Yeager v. Providence Health Sys. Or., 96 P.3d 862, 865 (Or.
Ct. App. 2004), in which the Oregon Court of Appeals held
that OFLA does indeed “create a civil remedy for retaliatory
discharge . . . .” The district court adopted the view that
Yeager was incorrectly decided and reasoned that the decision
was not binding on federal courts because it was the pro-
nouncement of only an intermediate appellate court, not of
Oregon’s highest court. Analyzing the state-law question for
itself, the district court ruled that OFLA does not provide a
cause of action for an employee who has been penalized or
discharged for pursuing rights under the statute. Conse-
quently, the district court granted summary judgment for
Sears.
II. ANALYSIS
[1] “ ‘[W]here there is no convincing evidence that the state
supreme court would decide differently, a federal court is
obligated to follow the decisions of the state’s intermediate
appellate courts.’ ” Vestar Dev. II, LLC v. Gen. Dynamics
Corp., 249 F.3d 958, 960 (9th Cir. 2001) (quoting Lewis v.
Tel. Employees Credit Union, 87 F.3d 1537, 1545 (9th Cir.
RYMAN v. SEARS, ROEBUCK AND CO. 13903
1996) (internal quotation marks omitted)). The district court
did not cite any evidence that the Oregon Supreme Court
would disaffirm Yeager. It merely disagreed with Yeager.1
Because there is no evidence that the Oregon Supreme Court
would have decided the OFLA issue differently, the district
court erred in not applying the Yeager rule.2
[2] However, the record in this case does not contain any
evidence that Sears violated OFLA, and “we may affirm the
grant of summary judgment on any basis supported by the
record.” Swirsky v. Carey, 376 F.3d 841, 850-51 (9th Cir.
2004). As Ryman was neither recovering from a serious
health condition nor providing care to a family member on
November 17, 2003, his absence on that day does not consti-
tute protected leave under OFLA, see OR. REV. STAT.
§ 659A.159 (2005), regardless of the fact that he was on fam-
ily leave during the three preceding days and was honestly
mistaken about when he was due back to work. Ryman was
not assessed any attendance points for the days he was on
family leave, and he has adduced no evidence that he was
retaliated or discriminated against in any way for exercising
his family leave rights.
AFFIRMED.
1
We note that the district court did cite opinions by other federal district
judges expressing their disagreement with the Yeager rule. The opinions
of other federal judges on a question of state law do not constitute “con-
vincing evidence that the state supreme court would decide [an issue] dif-
ferently,” Vestar, 249 F.3d at 960, nor do those opinions contain any
relevant “convincing evidence.”
2
Although not dispositive, we note that the Oregon Supreme Court
declined to grant review of Yeager. See Yeager v. Providence Health Sys.
Or., 103 P.3d 641 (Or. 2004) (table).