Ronald Law v. Kinross Gold U.S.A., Inc. , 651 F. App'x 645 ( 2016 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 6 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RONALD LAW, No. 14-15990
Plaintiff-Appellant, D.C. No. 3:12-cv-00261-LRH-
VPC
v.
KINROSS GOLD U.S.A., INC, MEMORANDUM*
Defendant-Appellee.
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Submitted May 11, 2016**
San Francisco, California
Before: McKEOWN and FRIEDLAND, Circuit Judges and LEFKOW,*** Senior
District Judge.
Ronald Law appeals the district court’s entry of summary judgment in favor
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Joan H. Lefkow, Senior District Judge for the U.S.
District Court for the Northern District of Illinois, sitting by designation.
of Kinross Gold USA, Inc., on the following claims: violation of the Family and
Medical Leave Act (FMLA), 29 U.S.C. §§ 2601 et seq., and tortious retaliation and
discharge in violation of Nevada’s public policies regarding worker’s
compensation, free speech, and access to courts.1 We have jurisdiction under 28
U.S.C. § 1291. We affirm.
We review a district court’s grant of summary judgment de novo. Toguchi v.
Chung, 391 F.3d 1051, 1056 (9th Cir. 2004). “We must determine, viewing the
evidence in the light most favorable to the nonmoving party, whether there are any
genuine issues of material fact and whether the district court correctly applied the
relevant substantive law.” Prison Legal News v. Lehman, 397 F.3d 692, 698 (9th
Cir. 2005).
I. FMLA
Law’s claim is one of interference with or entitlement to FMLA leave for a
serious health condition under 29 U.S.C. § 2615(a)(1). See Bachelder v. Am. W.
Airlines, Inc., 259 F.3d 1112, 1124 (9th Cir. 2001) (explaining that allegations of
denial of use of FMLA leave is a claim for interference under § 2615(a)(1)). To
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The action before the district court also included claims for breach of contract,
breach of the implied covenant of good faith and fair dealing, and retaliation and
discharge in violation of public policy (refusing to engage in illegal conduct).
These issues are waived because they are not raised on appeal. See Smith v. Marsh,
194 F.3d 1045, 1052 (9th Cir. 1999).
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establish interference, the employee must prove that “(1) he was eligible for the
FMLA’s protections, (2) his employer was covered by the FMLA, (3) he was
entitled to leave under the FMLA, (4) he provided sufficient notice of his intent to
take leave, and (5) his employer denied him FMLA benefits to which he was
entitled.” Sanders v. City of Newport, 657 F.3d 772, 778 (9th Cir. 2011).
Law contends that he was wrongfully denied leave under 29 U.S.C.
§ 2612(a)(1)(D)—for “a serious health condition” that made him “unable to
perform the functions of [his] position” at Kinross during a four-day
hospitalization from April 5 to April 9, 2010. A “serious health condition” includes
“an illness, injury, impairment, or physical or mental condition that involves—(A)
inpatient care in a hospital. . . .” 29 U.S.C. § 2611(11); see also 29 C.F.R. §
825.113(a). For an unforeseeable medical condition such as Law’s, notice to the
employer may be minimal, but an employee “has an obligation to respond to an
employer’s questions designed to determine whether an absence is potentially
FMLA-qualifying.” 29 C.F.R. § 825.303(b). “Failure to respond to reasonable
employer inquiries regarding the leave request may result in denial of FMLA
protection if the employer is unable to determine whether the leave is FMLA-
qualifying.” Id.Law failed to establish that he was eligible for FMLA benefits. He argues
that Kinross did not comply with 29 C.F.R. § 825.300(c)(1), requiring an employer
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to “provide written notice detailing the specific expectations and obligations of the
employee and explaining any consequences of a failure to meet these obligations.”
The record belies the argument. Shortly after Law informed Kinross that he had
been hospitalized, Kinross delivered to him a letter requesting additional
information. The letter directed him “to complete and return” attached FMLA
forms if he wished to apply for FMLA leave. The forms advised in bold type that
“in order for us to determine whether your absence qualifies as FMLA leave, you
must return the following information to us by April 28, 2010,” and directed him to
provide “[s]ufficient certification to support [his] request for FMLA leave.” Law
does not deny receiving the letter and forms or that he did not return the forms.2
By failing to respond to the request for information, Kinross was unable to
determine whether Law was entitled to FMLA leave. Having been warned of the
consequence of failing to provide documentation of his medical condition, Law
2
Law asserts in his briefs to this court that he “never admitted to receiving the
form,” but he never actually denies or challenges Kinross’s assertion that the letters
and forms were delivered to him—or the district
court’s treating that delivery as an uncontested fact. Law instead focuses his
appellate argument on the content of the notices, contending that “the FMLA form
does not actually state the consequences of not returning the form.” He has thus
waived any argument that he did not receive the notices. See Arpin v. Santa
Clara Valley Transp. Agency, 261 F.3d 912, 919 (9th Cir. 2001) (arguments not
“specifically and distinctly . . . raised in a party’s opening brief are waived”). And,
as discussed herein, the contention that the notices provided insufficient
information fails.
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lost FMLA protection. See 29 C.F.R. § 825.303(b).
Law next argues that there are issues of material fact as to whether he would
have been terminated had he not needed or requested FMLA leave. He relies on the
temporal proximity of his hospitalization and termination and on the lack of
previous discipline in his work record as evidence of causation. Suspicious timing
may be circumstantial evidence of a causal link between exercise of FMLA rights
and an adverse employment action, see Pagel v. TIN Inc., 695 F.3d 622, 631 (7th
Cir. 2012), but “[w]hen the moving party has carried its burden under Rule 56(c),
its opponent must do more than simply show that there is some metaphysical doubt
as to the material facts.” Matsushita Elec. Indus. Co., v. Zenith Radio Corp., 475
U.S. 574, 586 (1986) (footnote omitted).
Law’s evidence raises only metaphysical doubt. The overwhelming evidence
before the district court was that Kinross had set the discharge in motion months
before Law’s hospitalization and had set a target date of mid-April 2010 for the
termination to occur, a time that only happened to coincide with Law’s
unanticipated hospitalization. Accordingly, the district court did not err in granting
summary judgment on Law’s FMLA claim. See Sanders, 657 F.3d at 780 (noting
that an employer does not violate the FMLA by denying restoration to employment
where it demonstrates “that an employee would not otherwise have been employed
at the time reinstatement is requested.” (quoting 29 C.F.R. § 825.316(a))).
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II. Tortious Discharge Claims
In Nevada, an employer commits a tortious discharge by terminating an at-
will employee for reasons that violate public policy. Brown v. Eddie World, Inc.,
348 P.3d 1002, 1003 (Nev. 2015) (en banc) (citing D’Angelo v. Gardner, 819 P.2d
206 (Nev. 1991)). Public policy is violated where an employer discharges an
employee for seeking worker’s compensation benefits. Hansen v. Harrah’s, 675
P.2d 394, 397 (Nev. 1984) (per curiam). Law concedes that he never filed a
worker’s compensation claim but relies on evidence that he asked about worker’s
compensation when he called Kinross on April 6 and that he had been complaining
to Kinross about a work-related injury since the previous August. That Law had
been complaining in the past but was not fired tends to favor Kinross and, since
Law produced no evidence that he even had a workplace injury, temporal
proximity to the phone call is insufficient evidence of causation to create a triable
issue of fact.
Neither did the district court err in granting summary judgment on Law’s
claim of tortious discharge for engaging in free speech. Nevada courts have not
recognized such a claim. Law relies on a California decision recognizing an action
against private employers who discharge an employee for exercising political
speech while off duty. Ali v. L.A. Focus Publ’n, 5 Cal. Rptr. 3d 791, 798–99 (Cal.
Ct. App. 2003). Although California law can be persuasive when interpreting
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Nevada law, see Thran v. First Jud Dist. Ct. In & For Ormsby County, 380 P.2d
297, 299 (Nev. 1963), California courts of appeal are actually divided on this issue.
Compare Ali, to Grinzi v. San Diego Hospice Corp., 14 Cal. Rptr. 3d 893, 899
(Cal. Ct. App. 2004). Even if Ali were authoritative, Law’s evidence does not
support a claim for tortious discharge based on free speech because his speech was
on-duty and not political.
Finally, to the extent Law mentions access to courts as a basis for his tortious
discharge claim independent of his free speech arguments, he has failed to show
that this is the kind of “rare and exceptional case[] where the employer’s conduct
violates strong and compelling public policy” sufficient to state a cause of action
cognizable under Nevada law. Sands Regent v. Valgardson, 777 P.2d 898, 900
(Nev.1989) (per curiam) (stating that Nevada “severely limit[s]” public policy
tortious discharge claims). Indeed, Law himself concedes in his briefing that
Nevada courts have never recognized such a claim.
Summary judgment was proper.
AFFIRMED.
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