In Escriba v. Foster Poultry Farms, Inc., ___ F.3d ___ (9th Cir. Feb. 25, 2014), the Ninth Circuit Court of Appeals affirmed the orders of the U.S. District Court for the Eastern District of California (Judge O’Neill) denying plaintiff’s motion for summary judgment and denying plaintiff’s motion for judgment as a matter of law.

Plaintiff’s employment of 18 years was terminated after she failed to return on time from an approved leave of absence (which she took to take care of her ailing grandfather in Guatemala) and, consequently, violated defendant employer’s “three day no-show, no-call rule.”  According to plaintiff, her leave of absence was taken pursuant to the Family Medical Leave Act (“FMLA”) and, therefore, the termination of her employment was illegal.  Defendant countered that although plaintiff had provided an FMLA-qualifying reason for taking leave, she explicitly declined to have her time off count as FMLA leave and, instead, asked for it to be designated as vacation time. Moreover, defendant argued, plaintiff had requested FMLA leave on 15 prior occasions, which it said was proof that she was very aware of what she was doing when she declined leave.  Consequently, the trial court denied plaintiff’s motion for summary judgment, finding that this was a classic “he said, she said” situation that should be tried by a jury.  At the close of evidence, plaintiff moved for judgment as a matter of law, upon which the court reserved judgment, pending the jury’s verdict.  The jury found in favor of defendant and the court subsequently denied plaintiff’s motion.

The appellate court agreed, finding that although the burden to designate leave as qualifying under the FMLA falls on the employer, an employee may nevertheless decline to use FMLA leave.  In this circumstance, there was sufficient evidence to show that plaintiff did just that, opting to take vacation leave instead.