The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
ORDER RE DEFENDANT'S ATTORNEYS FEES MOTION (DOC. 217)
Defendant Foster Poultry Farms ("FPF") as predominantly prevailing party brings this motion for attorney's fees pursuant to Fed. R. Civ. Pro. 37(c)(2) and FEHA against Plaintiff Maria Escriba. Plaintiff motion.
On October 26, 2009, Plaintiff filed her Complaint alleging: Unlawful Interference with FMLA rights; Discrimination under the FMLA; Failure to provide CFRA leave; Unlawful discharge and discrimination under CFRA; Failure to prevent discrimination under CFRA; and Termination in violation of California's public policy. Compl., ECF No. 1.
Plaintiff's First Amended Complaint ("FAC") added a claim for failure to pay earned wages, including vacation pay, and waiting time penalties. First Am. Compl., ECF No. 8. Defendant asserted fourteen affirmative defenses in its Answer to Plaintiff's FAC. Answer, ECF No. 15.
The parties filed cross motions for summary judgment on June 3, 2011. Mots. Summ. J., ECF Nos. 33, 41. The Memorandum Decision Order granted in part and denied in part the cross-motions. Summ. J. Order, ECF No. 98. Specifically, Plaintiff's fifth claim for failure to prevent discrimination under Fair Employment and Housing Act ("FEHA") and claim for punitive damages were granted in Defendant's favor. Plaintiff's seventh claim for failure to pay wages was granted in Plaintiff's favor. All other claims were denied summary judgment. Id.
Trial began on July 13, 2011. At trial a highly disputed credibility dispute issue arose centered around what Plaintiff told her supervisors, and what they said in response, when she requested a vacation to see her sick father in Guatemala.
In fall 2007, Plaintiff learned that her father in Guatemala was ill. Plaintiff contends that on November 16, 2007, she received a phone call from her niece that Plaintiff's father had taken a turn for the worse. Plaintiff booked a roundtrip ticket to Guatemala, leaving on November 23, 2007 and returning on December 27, 2007.
The following Monday, Plaintiff met with her direct supervisor, Linda Mendoza, and requested vacation time off to visit her sick father. A conversation ensued regarding Plaintiff's request. A dispute arose about who was involved in this conversation. Plaintiff, who claims to speak limited English, testified that no interpreter was present. Defendant's witnesses testified to the opposite. There is also a dispute regarding what was said during the conversation.
Ultimately, Ms. Mendoza approved Plaintiff for two weeks of vacation. Plaintiff's vacation slip states that she was required to return on December 10, 2007.
Plaintiff then spoke with the facility superintendant, Edward Mendoza. Witness testimony is highly conflicting regarding what was said during this conversation. Plaintiff claims Mr. Mendoza orally approved an extended leave of indefinite duration, explaining that she needed only to come back with a doctor's note to substantiate her need for FMLA leave. Mr. Mendoza testified that he told Plaintiff if she needed time past her vacation time off, that she would need to fax or send human resources ("HR") a doctor's note, presumably from Guatemala.
Plaintiff left for Guatemala without contacting the HR office as she had on the fifteen prior occasions she had requested FMLA leave.
While in Guatemala Plaintiff learned that she would need to stay past her scheduled return date. Plaintiff testified that she unsuccessfully attempted to call and to fax a note to FPF. Defendant's witnesses testified that they did not receive any contact from Plaintiff, telephonic or by fax, while she was in Guatemala.
Plaintiff returned to the United States on December 27, 2007. She learned that her job had been terminated pursuant to FPF's policy that employees are automatically terminated if they do not call or come to work within three days of the expiration of their scheduled time off.
On July 21, 2011, before the case was submitted to the jury, both parties filed motions for JMOL. ECF Nos. 197, 198. The Court heard oral argument on the cross-motions the same day. Trial Tr. 130-149, July 21, 2011. On July 22, 2011, ...