Sarah Rodriguez v. AKIMA INFRASTRUCTURE SERVICES, LLC and AKIMA, LLC

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SARAH RODRIGUEZ,
Plaintiff-Appellant,
v.
AKIMA INFRASTRUCTURE SERVICES,
LLC and AKIMA, LLC,
Defendants-Appellees.
No. 17-16262
D.C. No. 4:16-cv-03607-PJH
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Phyllis J. Hamilton, Chief Judge, Presiding
Argued and Submitted December 20, 2018
San Francisco, California
Before: M. SMITH, NGUYEN, and BENNETT, Circuit Judges.
Sarah Rodriguez appeals the district court’s order granting summary
judgment in favor of her former employer, Akima Infrastructure Services, LLC and
Akima, LLC (together, “Akima”). We have jurisdiction under 28 U.S.C. § 1291.
Reviewing de novo, see Bravo v. City of Santa Maria, 665 F.3d 1076, 1083 (9th
Cir. 2011), we reverse and remand.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
JAN 9 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Rodriguez argues that a genuine dispute of material fact exists regarding
whether Akima replaced her while she was on leave under the Family and Medical
Leave Act (“FMLA”), 29 U.S.C. §§ 2601 et seq. We agree.
Rodriguez is entitled to restoration to her position under 29 U.S.C.
§ 2614(a)(1), which means a “return[] to the same position the employee held
when leave commenced, or to an equivalent position . . . even if the employee has
been replaced or his or her position has been restructured to accommodate the
employee’s absence.” 29 C.F.R. § 825.214. There is no dispute that while
Rodriguez was on protected leave for her pregnancy, Akima suffered a substantial
decline in its business that forced it to restructure. Akima argues that it eliminated
Rodriguez’s position during this restructure.
Viewing the evidence in the light most favorable to Rodriguez, Bravo, 665
F.3d at 1083, however, a genuine dispute of fact remains as to whether Rodriguez
was replaced by Peter Menig. Despite the differences in pay and job titles between
Rodriguez and Menig, Rodriguez contends that they essentially performed the
same recruiting tasks, with one exception for her minimal participation in new-hire
orientations. Rodriguez also claims that prior to her leave, her supervisor informed
her that Akima would hire a replacement with sufficient overlap so that Rodriguez
could train the replacement. Based on that understanding, Rodriguez emailed
others at Akima that Menig would be taking over her responsibilities. Rodriguez’s

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testimony creates a sufficient, triable question of fact to survive summary
judgment.
The parties agree that Rodriguez’s remaining claims rise and fall with the
FMLA claim. See Rogers v. Cty. of Los Angeles, 130 Cal. Rptr. 3d 350, 355 (Cal.
Ct. App. 2011) (explaining that the FMLA and CFRA “contain nearly identical
provisions”); Merrick v. Hilton Worldwide, Inc., 867 F.3d 1139, 1150 (9th Cir.
2017) (holding that wrongful termination requires a violation of public policy
“embodied in statute”).
REVERSED AND REMANDED.

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