Sally M. Kinney v. Holiday Companies;

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SALLY M. KINNEY,
Plaintiff - Appellant,
v.
HOLIDAY COMPANIES; et al.,
Defendants - Appellees.
No. 09-35406
D.C. No. 3:07-cv-00147-RRB
MEMORANDUM*
Appeal from the United States District Court
for the District of Alaska
Ralph R. Beistline, Chief District Judge, Presiding
Argued and Submitted July 30, 2010
Anchorage, Alaska
Before: SCHROEDER, O’SCANNLAIN and CLIFTON, Circuit Judges.
Sally Kinney appeals the district court’s summary judgment in favor of
defendants (“Holiday”) on her claims under the Family and Medical Leave Act of
1993 (“FMLA”). Kinney argues that Holiday violated the FMLA (1) by firing her
for a pretextual reason intended to mask the true, health-related motivation for her
FILED
OCT 05 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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termination and (2) by denying her alleged request for medical leave on March 13,
2007. We review the district court’s grant of summary judgment de novo. Liu v.
Amway Corp., 347 F.3d 1125, 1131 (9th Cir. 2003). Although we affirm the
judgment on the issues that the district court reached, Kinney’s FMLA termination
claim—which the district court failed to consider—gives rise to a genuine dispute
of material fact. We vacate summary judgment as to that claim and remand for
further proceedings.
The district court erred in explicitly declining to address Kinney’s claim that
Holiday violated the FMLA by firing her because of her cancer. Interference with
FMLA rights includes “not only refusing to authorize FMLA leave, but
discouraging an employee from using such leave.” 29 C.F.R. § 825.220(b).
“[E]mployers cannot use the taking of FMLA leave as a negative factor in
employment actions, such as hiring, promotions or disciplinary actions.” Id. §
825.220(c).
Kinney has a valid FMLA termination claim if she can show that Holiday
used her 2005 and 2006 FMLA-covered absences, in conjunction with its
awareness that her illness might require more medical leave in the future, as a
“negative factor” in its decision to fire her. Although Kinney did not clearly
present a termination-related claim in her complaint, she did allege an interference

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claim that mentioned her termination, and she argued a termination theory in
opposition to summary judgment. “Even when [plaintiff’s counsel] initially
misconceive[s] the proper legal theory of [a] claim, summary judgment does not
follow if the plaintiff is entitled to relief on some other legal theory and requested
as much.” Alvarez v. Hill, 518 F.3d 1152, 1158 (9th Cir. 2008) (internal quotation
marks omitted). The district court demonstrated its awareness of “Kinney’s
allegations of wrongful termination” in its order granting summary judgment, and
the court erred in failing to address them.
The record makes clear that Kinney’s termination claim is not amenable to
summary judgment on remand because it raises a genuine issue of material fact.
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Kinney contends
that “the proximity in time” between her cancer’s recurrence and her termination
“provides supporting evidence of a connection between the two events,” Liu, 347
F.3d at 1137, and that Holiday’s given reason for firing her was a pretext. Kinney
presented evidence that the Holiday managers involved in the termination decision
were aware that her cancer had returned and discussed whether she had taken
FMLA leave shortly before she was terminated. Such evidence creates a triable
issue as to whether her potential need for FMLA leave in the future was a negative
factor in Holiday’s decision to terminate her. Furthermore, although Holiday

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claims to have fired Kinney, in accordance with company policy, because she
twice failed to verify the age of a customer purchasing cigarettes, there is
conflicting evidence as to whether Kinney’s first tobacco-sale violation occurred at
all. Whether it did is a question for a trier of fact that bears directly on the
likelihood that Holiday’s reason for firing Kinney was genuine, and thus indirectly
on the likelihood that her illness was a “negative factor” in Holiday’s termination
decision.
The district court properly rejected Kinney’s claim that Holiday violated the
FMLA by denying her supposed request for medical leave on March 13, 2007.
Kinney never made an unconditional request for time off on March 13, let alone
one that met the FMLA’s notice requirement. Kinney told her manager that she
“wasn’t feeling good” and “needed to go home,” and she asked her manager if she
could “possibly find somebody to come in.” The manager said “she would try,” but
neither party spoke of the matter again for the rest of Kinney’s shift. Kinney
conditioned her request on her manager’s finding a replacement worker, which her
manager apparently did not or could not do. Even if Kinney had made an
unconditional request, she would not have satisfied the FMLA’s notice
requirement for an employee in her situation. “An employee giving notice of the
need for unpaid FMLA leave must explain the reasons for the needed leave so as to

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allow the employer to determine that the leave qualifies under the Act. If the
employee fails to explain the reasons, leave may be denied.” 29 C.F.R. §
825.208(a)(1) (2007). Kinney’s vague statements were insufficient to put her
manager on notice that she was seeking FMLA-protected leave. We therefore
affirm the district court’s grant of summary judgment on the FMLA claim based on
denial of leave.
The district court acted within its discretion when it denied Kinney’s motion
to amend her complaint. Because Kinney sought to amend her complaint after the
deadline set by the district court’s scheduling order, she had to show good cause
for amendment, which depends primarily on whether she acted diligently. Johnson
v. Mammoth Recreations, Inc., 975 F.2d 604, 608-09 (9th Cir. 1992). The district
court properly found that Kinney knew or should have known of the grounds for
the claims she sought to add well before she moved for leave to amend her
complaint. We therefore affirm the court’s conclusion that Kinney failed, for lack
of diligence, to demonstrate good cause for amendment.
Each party is to bear its own costs.
AFFIRMED in part, VACATED in part, and REMANDED.

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