Maria Escriba worked for Foster Poultry Farms, Inc. ("Foster Farms") for 18 years.  On November 19, 2007, Escriba asked her immediate supervisor, Linda Mendoza, for time off to care for her ailing father in Guatemala.  Mendoza approved a two-week vacation for Escriba and Escriba reaffirmed prior to taking leave that she did not need any additional leave beyond the two-week vacation.  Mendoza also advised Escriba that if she needed more leave, Escriba would need to visit the Human Resources Department. 

Escriba then went to Ed Mendoza, the Foster Farms facility superintendent, and asked if she could get one or two weeks more leave.  Ed Mendoza claims that Escriba asked "strictly" for vacation time and not "family leave."  Ed Mendoza told Escriba to contact Human Resources if she needed more time off and did not instruct her regarding her rights and obligations under the Family Medical Leave Act (FMLA).

Escriba traveled to Guatemala to care for her father.  She testified that upon arriving in Guatemala, she decided that returning to work in two weeks was impractical.  However, Escriba never attempted to contact Foster Farms to extend her leave.  In fact, Esriba's first contact with anyone affiliated with Foster Farms about extending her leave was a conversation with her union representative on December 21, 2007, sixteen days after she was scheduled to return to work.  The union representative told Escriba she would likely be terminated under Foster Farm's "three-day no-show, no-call rule" which provides that an employee is automatically terminated if he or she is absent for three work days without notifying the company or without seeking a cause of absence.  Escriba was subsequently terminated for violating the "three-day no-show" rule. 

Escriba filed a lawsuit alleging violation of the FMLA, the California Family Right Act (CFRA) and California public policy.  Following trial, the jury returned a verdict for Foster Farms. 

On appeal, Escriba argued that because she told both Linda Mendoza and Ed Mendoza that she needed time off to care for her father, she was automatically entitled to FMLA protections.  She also argued that the jury's verdict was contrary to the evidence.

To establish a claim for FMLA interference, an employee must establish that he was eligible for FMLA protections, the employer was covered by the FMLA, the employee was entitled to leave under the FMLA, the employee provided sufficient notice of his intent to take leave and the employer denied FMLA benefits.  Escriba argues that Foster Farms was required to designate her leave as FMLA-protected and to provide her with a notice of her rights under the FMLA regardless of whether she expressly declined such a designation. 

The Court noted that the FMLA does not expressly state whether an employee may defer the exercise of FMLA rights under the statute.  However, FMLA regulations (29 C.F.R. section 825.303(b)) provide that after an employee alerts the employer of desiring to take leave for a reason that would qualify under the FMLA, the employer will be expected to obtain "any additional required information through informal means."  Furthermore, 29 C.F.R. section 825.302(c) provides that an employee need not expressly assert rights under the FMLA or even mention the FMLA, but the employer should inquire further of the employee if it is necessary to have more information about whether FMLA leave is being sought by the employee and to obtain necessary details of the leave to be taken.  Accordingly, the Court concluded that an employee can affirmatively decline to use FMLA leave, even if the underlying reason for seeking the leave would have invoked FMLA protection.

The Ninth Circuit stated that an employer's obligation to ascertain whether FMLA leave is being sought strongly suggests that there are circumstances in which an employee might seek time off but intend not to exercise his or her rights under the FMLA.  The Court further determined that if it held that simply referencing an FMLA-qualifying reason triggers FMLA protections, it would place employers in an "untenable situation" because the employer could find itself open to liability for forcing FMLA leave on the unwilling employee.

The Ninth Circuit further held that there was substantial evidence that Escriba elected not to take FMLA leave.  Escriba twice told Linda Mendoza that she did not need more than two weeks in Guatemala.   Other witnesses corroborated Linda Mendoza's testimony that Escriba did not intend to take FMLA leave.  Ed Mendoza, for instance, testified that Escriba only asked for "vacation time".  The Ninth Circuit also determined that Escriba knew that only Foster Farms's Human Resources Department approved FMLA leave because she had successfully requested FMLA leave on fifteen prior occasions. 

Note: 

The decision leaves many unanswered questions.  It stands for the principle that an employee can decline to take FMLA/CFRA leave to care for the serious medical condition of a parent, spouse or child.  Accordingly, in those situations, agencies should ensure, in writing, that an employee wants to take leave under the FMLA/CFRA.  Would the same holding apply where an employee was taking leave for their own serious health condition?  That is not addressed by the court and remains an open question.  It would seem that an employee who was on leave for a serious health condition could have his or her leave burned up by the employer even if the employee did not want to use their FMLA/CFRA leave.  However, that is an open question in light of Escriba.

Escriba v. Foster Poultry Farms, Inc. (9th Cir. 2014) ____ F.3d __ [2014 WL 715547]