Plaintiff?? worked? ?in? ?a?? Foster?? Poultry Farms, Inc. (Foster Farms) processing plant in Turlock, California. ?She was terminated in 2007 for failing to comply with the company?s ?three day no-show, no-call rule? after the end of a previously approved period of vacation leave, which she took to care for her ailing father in Guatemala.?? ?Plaintiff claimed that she had requested ?FMLA ?for ?a ?qualifying ?reason ?that would ?have ?extended ?her ?leave? to ?include? the period for which she failed to appear at work. Plaintiff filed suit under the Family and Medical Leave Act (FMLA) and its California equivalent.

There existed a disputed question of fact about? ?whether? ?Plaintiff? ?specifically?? declined FMLA leave. ?The Defendant argued that, although there was a qualifying reason, after considerable discussion Plaintiff declined to have her time off characterized as FMLA leave. ?The case proceeded to trial, with a verdict in favor of the Defendant. Plaintiff filed a motion for judgment as a matter of law, which was denied, and Plaintiff appealed. Plaintiff? argued ?that ?once? she? asked ?for time off for a qualifying reason the employer was obligated to give notice of her rights under the FMLA? ?regardless? ?of? ?whether?? she?? expressly declined? such? a designation.??? The Ninth? Circuit rejected this argument.?? It ruled that, although an employee need not? expressly assert rights under the FMLA or even mention the statute, there are circumstances in which an employee might seek time off but intend not to exercise his or her rights under the FMLA. Simply referencing a qualifying reason does not suffice to trigger the protections of the statute. ??[A]ffirmatively declining the present exercise of a right in order to preserve it for the future is fundamentally different from permanently relinquishing that right.?

The Court found that the jury was properly instructed about the law without objection, and the jury found that Plaintiff explicitly declined to designate her time off as FMLA leave. ?The Court also found there existed substantial evidence sufficient to support the verdict.

Escriba v. Foster Poultry Farms, Inc., — F.3d —- (9th Cir. 2/25/14) (Gillman (6th Cir.), Rawlinson, Thomas).