United States District Court, N.D. California, San Francisco Division
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT Re: Dkt. No. 20
NATHANAEL M. COUSINS, Magistrate Judge.
Alis Derus brought this action against California Home Medical Equipment, Inc., Bernie Zimmer, President of CHME, and Emmanuel Polin, her immediate supervisor, for refusing to grant her requested medical leave in violation of the Family and Medical Leave Act. All defendants moved for summary judgment, or in the alternative for partial summary judgment. Because the Court finds that CHME did not refuse to grant Derus' request for medical leave, the Court grants defendants' motion for summary judgment. But the Court will allow Derus to move for leave to amend her complaint in order to bring a new theory of interference, which she has raised for the first time in her opposition to the motion for summary judgment.
A. Factual History
Derus alleges that she began her employment with California Home Medical Equipment, Inc. ("CHME") in January 2010. Dkt. No. 1 at ¶ 11. In April 2011, she informed CHME that she was requesting leave for her own serious health condition. Id. at ¶ 12. Although not alleged in the complaint, she stated in a declaration that she was born with a heart condition that requires periodic follow-up to a cardiology clinic. Dkt. Nos. 26 at ¶ 2; 26-4 at 2. Derus alleges that she provided "reasonable notice to CHME of her need for medical, including its expected time and length, " Dkt. No. 1 at ¶ 13, but "CHME refused to grant [her] request for medical leave." Id. at ¶ 14.
Defendants have offered countervailing evidence against Derus' allegations. According to defendants, Derus began working for CHME on April 26, 2010. Dkt. No. 21 at 13. Defendants have pointed to Derus' deposition, in which she admitted that she never made a written request for family medical leave after April 26, 2011. Dkt. No. 21 at 5. Additionally, Derus testified that she does not recall making a verbal request for family medical leave after April 26, 2011. Dkt. No. 21 at 5. Derus also conceded that she did not miss any doctor's appointments because CHME prevented her from going to them. Dkt. No. 22 at 3. She agreed that no one from CHME had "prevent[ed] [her] from seeing Dr. Wilma Arguelles-Gaviola[, ]" or "from seeing Dr. Nader Banki." Dkt. No. 22 at 1, 2. She further agreed that Bernie Zimmer, one of the defendants, never "den[ied] [her] any family medical leave." Dkt. No. 22 at 4. According to defendants, Derus was out on sick leave from May 2 to May 10, 2011. Dkt. No. 22 at 11. On or around May 10, 2011, Derus dropped off a doctor's note at CHME saying that she was unable to attend work from May 10 through May 24, 2011. Dkt. No. 22 at 5. On May 31, Derus sent an email to CHME, saying she was quitting because of her permanent disability. Dkt. No. 22 at 7.
The Court has subject matter jurisdiction under 28 U.S.C. § 1331, as this action arises under the FMLA, 29 U.S.C. § 2601 et seq. All parties have consented to the jurisdiction of a magistrate judge under 28 U.S.C. § 636(c). Dkt. No. 31 at 6-7.
II. LEGAL STANDARD
Summary judgment may be granted only when, drawing all inferences and resolving all doubts in favor of the nonmoving party, there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A fact is material when, under governing substantive law, it could affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. Bald assertions that genuine issues of material fact exist are insufficient. Galen v. Cnty. of L.A., 477 F.3d 652, 658 (9th Cir. 2007).
The moving party bears the burden of identifying those portions of the pleadings, discovery, and affidavits that demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. Once the moving party meets its initial burden, the nonmoving party must go beyond the pleadings and, by its own affidavits or discovery, set forth specific facts showing that a genuine issue of fact exists for trial. Fed.R.Civ.P. 56(c); Ruffin v. Cnty. of L.A., 607 F.2d 1276, 1280 (9th Cir. 1979). All reasonable inferences, however, must be drawn in the light most favorable to the nonmoving party. Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 922 (9th Cir. 2004).
A. The Court Grants Summary Judgment on Derus's Interference and Constructive Discharge Claims
The FMLA prohibits employers from "interfer[ing] with, restrain[ing], or deny[ing]" an employee's exercise or attempt to exercise rights to FMLA-protected leave, 29 U.S.C. § 2615(a)(1), or from "discriminat[ing] against any individual" for opposing any practice made unlawful under the FMLA, or for instituting or participating in FMLA proceedings or inquiries. Id. at § 2615(a)(2), (b); see Bachelder v. Am. W. Airlines, Inc., 259 F.3d 1112, 1124 (9th Cir. 2001). Derus' only cause ...