Anthony Shelton v. the Boeing Company, a Delaware corporation

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANTHONY SHELTON,
Plaintiff-Appellant,
v.
THE BOEING COMPANY, a Delaware
corporation,
Defendant-Appellee.
No. 15-35070
D.C. No. 2:14-cv-00234-TSZ
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
Thomas S. Zilly, District Judge, Presiding
Argued and Submitted July 14, 2017
Seattle, Washington
Before: FARRIS, MURPHY,** and NGUYEN, Circuit Judges.
Anthony Shelton appeals the district court’s denial of his motion for partial
summary judgment and grant of summary judgment in favor of Boeing on his
Washington State Family Leave Act (“WFLA”) interference claim. Boeing
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Michael R. Murphy, United States Circuit Judge for
the U.S. Court of Appeals for the Tenth Circuit, sitting by designation.
FILED
AUG 1 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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terminated Shelton under its progressive discipline policy after he received three
corrective action memos (“CAMs”) in the same infraction category. Boeing
administered the first two CAMs for Shelton’s refusal to comply with his
manager’s instructions to notify her before any absence; some of these absences
were covered by the federal Family and Medical Leave Act (“FMLA”). We have
jurisdiction under 28 U.S.C. § 1291. We review the district court’s grant of
summary judgment de novo. Szajer v. City of Los Angeles, 632 F.3d 607, 610 (9th
Cir. 2011). We affirm.
The WFLA is patterned on and construed in accordance with the FMLA.
Wash. Rev. Code § 49.78.410. The FMLA entitles employees to a certain amount
of leave for protected medical reasons. Sanders v. City of Newport, 657 F.3d 772,
777 (9th Cir. 2011). Employers may not “interfere with, restrain, or deny” the
exercise of this right. 29 U.S.C. § 2615(a)(1); Wash. Rev. Code § 49.78.300(a).
To demonstrate interference, the plaintiff must show by a preponderance of the
evidence that his taking of FMLA leave was a “negative factor” in his employer’s
decision to deny him FMLA leave or take an adverse employment action against
him. See Bachelder v. Am. W. Airlines, Inc., 259 F.3d 1112, 1125 (9th Cir. 2001).
An employee must comply with the employer’s usual and customary policies for
requesting leave, absent unusual circumstances. 29 C.F.R. § 825.303(c).

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In this case, the district court did not err in granting summary judgment for
Boeing because no reasonable jury could find that Shelton’s FMLA leave was a
negative factor in his termination. Boeing submitted evidence showing that it
administered the first two CAMs to Shelton because he refused to comply with his
manager’s instructions to contact her directly before taking any absence, not
because he exercised his right to FMLA leave. And, Shelton provided no
additional evidence that could possibly establish that the nature of his FMLA leave
was a negative factor, or even a factor at all, in Boeing’s decision to discipline him.
Cf. Throneberry v. McGehee Desha Cty. Hosp., 403 F.3d 972, 980 (8th Cir. 2005)
(an employer may discipline an employee for misconduct associated with FMLA
leave if it would have imposed the same discipline if the employee had taken a
different form of leave).
Furthermore, Shelton fails to establish that he complied with Boeing’s usual
and customary policy for requesting leave. The Shared Accountability section of
the Leaves of Absence Policy Handbook (“LOA Handbook”) explains that
“employees needing to take any absence should always speak to their manager”;
the appendix of the LOA Handbook says managers must be contacted in the event
of FMLA absences; and the Puget Sound Attendance Guidelines explain that
“unscheduled absences must be reported to the employee’s organization on or
before the day that the absence occurs.” (Emphasis added). To the extent that the

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written policies may be inconsistent with the LOA Handbook’s FMLA policies in
Section 7, there is no question that Shelton knew he needed to report his absences
to his manager. He was reminded on multiple occasions. Nothing in the FMLA
prohibits an employer from disciplining an employee for noncompliance with the
company’s usual and customary attendance policies. See Bones v. Honeywell Int’l,
Inc., 366 F.3d 869, 878 (10th Cir. 2004).
Additionally, no unusual circumstances justified Shelton’s noncompliance.
He failed to proffer evidence that anything outside his control prevented him from
following the policy, or that he was reasonable in disregarding his manager’s clear
and repeated instructions to notify her before any absence. See 29 C.F.R.
§ 825.302(d).
Finally, there is no merit to Shelton’s argument that 29 C.F.R. § 825.304(e)
mandates that an employer that grants FMLA leave automatically waives its ability
to discipline an employee for refusal to comply with attendance policies. Shelton
cites no authority to support this interpretation.
AFFIRMED.

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