MERRILL SMITH v. Denis Thirion; et al., Defendants. (2021)

United States Court of Appeals, Ninth Circuit.2021-04-19No. No. 20-15862

Summary · law.co

Holding. The court affirmed the district court's grant of summary judgment on the FMLA interference claim based on pool status placement, dismissal of the FMLA claim for the pool period due to failure to allege eligibility, and denial of leave to amend the complaint a third time.

Carolyn Merrill-Smith appealed the dismissal of portions of her Family Medical Leave Act claim against her former employer, La Frontera Arizona EMPACT-SPC. The district court had granted summary judgment on one FMLA interference claim and dismissed another for failure to state a claim. The court also refused to allow Merrill-Smith to file a third amended complaint.

The appellate court affirmed all of the district court's decisions. On the first FMLA claim, Merrill-Smith failed to show that the employer's decision to provide her informal leave in pool status, rather than formal FMLA leave, caused her any actual harm. On the second claim, she had not alleged the required 1,250 hours of work in the relevant twelve-month period needed to qualify for FMLA protection. The court also found the district judge properly exercised discretion in denying a third amendment, particularly since the judge had already instructed her on what allegations were necessary.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether employer's provision of informal leave instead of formal FMLA leave caused prejudice to employee
Whether employee alleged sufficient hours worked to establish FMLA eligibility during the pool period
Whether district court abused discretion in denying third amendment to complaint

Procedural posture

Merrill-Smith appealed from district court orders dismissing part of her FMLA claim and granting summary judgment on another part, as well as the denial of leave to amend her complaint.

Authorities cited

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Opinion · public domain

MEMORANDUM **

Plaintiff Carolyn Merrill-Smith appeals district court orders dismissing part of her Family Medical Leave Act (FMLA) claim for failure to state a claim and granting summary judgment for defendant La Frontera Arizona EMPACT-SPC (La Frontera) on a second part of the claim. She also challenges the district courts decision not to grant her leave to amend her complaint a third time. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

We review a grant of summary judgment and a dismissal for failure to state a claim de novo. Scalia v. Emp. Sols. Staffing Grp., LLC., 951 F.3d 1097, 1101 (9th Cir. 2020). We review a denial of leave to amend a complaint for abuse of discretion. United States v. United Healthcare Ins. Co., 848 F.3d 1161, 1172 (9th Cir. 2016). Because the parties are familiar with the history of this case, we need not recount it here.

The district court properly granted summary judgment to La Frontera on Merrill-Smiths claim for FMLA interference based on her placement in part-time “pool” status in August 2013. To survive summary judgment on an FMLA claim, an employee must show there is a genuine dispute of fact regarding whether her employers alleged FMLA violation prejudiced her. Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 89, 122 S.Ct. 1155, 152 L.Ed.2d 167 (2002); Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (internal quotations and citation omitted). Merrill-Smith presented no evidence that La Fronteras decision to give her five months of informal leave while nominally in pool status, rather than 12 weeks of formal FMLA leave, prejudiced her. See 29 U.S.C. § 2612(a)(1).

The district court also properly dismissed Merrill-Smiths claim for FMLA interference during the September 2013-to-January 2014 period when she was in pool status at La Frontera (the “pool period”). Merrill-Smith failed to allege FMLA eligibility during the pool period because she did not allege that she worked the requisite 1,250 hours at La Frontera in the twelve months preceding any date in that period. See 29 U.S.C. § 2611(2)(A)(ii). We decline to reach Merrill-Smiths argument, raised for the first time on appeal, that her allegation that she worked 1600 hours in the year preceding her placement into the pool suffices to establish her FMLA eligibility throughout the pool period. See El Paso City v. Am. W. Airlines, Inc. (In re Am. W. Airlines, Inc.), 217 F.3d 1161, 1165 (9th Cir. 2000) (“Absent exceptional circumstances, we generally will not consider arguments raised for the first time on appeal.”).

The district court properly exercised its discretion in declining to grant Merrill-Smith leave to amend her complaint for a third time where the court had previously instructed Merrill-Smith on the required allegations as to hours worked. See Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992); Ascon Props., Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989).

We decline to reach Merrill-Smiths argument, raised for the first time on appeal, that La Frontera denied her reinstatement to her previous position in violation of the FMLA. See In re Am. W. Airlines, Inc., 217 F.3d at 1165.

Appellants motion, Dkt. No. 6, is granted.

AFFIRMED.