Escriba v. Foster Poultry Farms

An employee can affirmatively decline to use FMLA leave, even if the underlying reason for seeking the leave would have invoked FMLA protection.

Maria Escriba worked was terminated for failing to comply with the “three day, no-show, no-call” rule following an approved period of leave used to care for her father in Guatemala. Escriba brought suit under the Family Medical Leave Act (“FMLA”) and its California equivalent. Escriba’s supervisor brought in a translator to confirm that she wanted two weeks of vacation, not FMLA leave. Escriba claimed her termination violated her rights under FMLA while Foster Farms contended that she declined to use FMLA leave to preserve future FMLA rights. Both filed motions for summary judgment and were denied. A jury returned a verdict in favor of Foster Farms. It found that Escriba had knowledge of FMLA leave, how to invoke it, and declined to do so. Escriba renewed a motion for judgment as a matter of law and a new trial which was denied. Next, Foster Farms moved to recover costs against Escriba which was denied. Both parties appealed the adverse rulings. To make a prima facie case of FMLA interference, the employee must establish 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.” Here, factor four is in dispute. The Ninth Circuit held that an employee can affirmatively decline to use FMLA leave, even if the underlying reason for seeking the leave would have invoked FMLA protection. If the employee declines FMLA, and does not have another acceptable reason under the employer’s policies for additional absences, a termination is justified. The panel affirmed the denial of costs because of the Escriba’s limited financial resources, and the economic disparity between the parties. AFFIRMED.