Kimberly Gunther, for herself and for all other current and former aggrieved employees v. International Business Machines Corporation, a New York Corporation

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KIMBERLY GUNTHER, for herself and for
all other current and former aggrieved
employees,
Plaintiff-Appellant,
v.
INTERNATIONAL BUSINESS
MACHINES CORPORATION, a New York
Corporation,
Defendant-Appellee.
No. 17-56626
D.C. No.
2:16-cv-02541-PSG-MRW
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Philip S. Gutierrez, District Judge, Presiding
Submitted March 4, 2019**
Pasadena, California
Before: WARDLAW and BENNETT, Circuit Judges, and SESSIONS,*** District
Judge.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable William K. Sessions III, United States District Judge
for the District of Vermont, sitting by designation.
FILED
MAR 20 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2
Kimberly Gunther appeals the district court’s holding that International
Business Machines Corporation’s (IBM) California vacation and personal-choice
holiday (PCH) policies (collectively “the Plan”) are lawful under section 227.3 of
the California Labor Code. We have jurisdiction under 28 U.S.C. § 1291, and we
affirm.
Section 227.3 of the California Labor Code prohibits the forfeiture of vested
vacation time upon termination of employment. Here, the Plan caps the number of
vacation and PCH days IBM employees can accrue in the future, based in part on
how many vacation and PCH days they have already accrued but not used. The
Plan does not, however, reclaim or take away vacation or PCH days that have
already vested. Thus, the Plan is legal under section 227.3. See Boothby v. Atlas
Mech., Inc., 8 Cal. Rptr. 2d 600, 604–05 (Ct. App. 1992).
It is therefore immaterial whether PCH days should be treated as vacation
days for purposes of section 227.3. If PCH days are treated as vacation days, then
the PCH policy is legal under section 227.3 because PCH days and vacation days
are capped in the same way. If PCH days are not treated as vacation days, then
section 227.3 does not apply in the first place.
AFFIRMED.

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