NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 26 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
DENISE VAN OSTEN, No. 22-55228
Plaintiff-Appellant, D.C. No. 3:19-cv-02106-TWR-BGS v.
HOME DEPOT USA, INC.; DOES, 1-10, MEMORANDUM* inclusive,
Defendants-Appellees.
Appeal from the United States District Court for the Southern District of California Todd W. Robinson, District Judge, Presiding
Argued and Submitted October 17, 2023 Pasadena, California
Before: PAEZ and H.A. THOMAS, Circuit Judges, and RAKOFF,** District Judge.
Denise Van Osten appeals a jury verdict in favor of Home Depot USA, Inc.
(“Home Depot”) and the imposition of sanctions against her attorney, Kevin
Mirch. We have jurisdiction under 28 U.S.C. § 1291. We affirm.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Jed S. Rakoff, United States District Judge for the Southern District of New York, sitting by designation. 1. Van Osten argues that the district court erred when it declined to instruct
the jury that Home Depot was required to request additional information from her
in writing before denying her leave under the Family and Medical Leave Act
(FMLA) of 1993, 29 U.S.C. § 2601. “We review de novo whether a district court’s
jury instructions accurately state the law, and we review for abuse of discretion a
district court’s formulation of jury instructions.” Coston v. Nangalama, 13 F.4th
729, 732 (9th Cir. 2021) (quoting Hung Lam v. City of San Jose, 869 F.3d 1077,
1085 (9th Cir. 2017)).
Under the FMLA, the burden was on Van Osten to provide “notice of the
need for FMLA leave” and to “explain the reasons for the needed leave . . . .” 29
C.F.R. § 825.301(b). The regulations implementing the FMLA provide that an
employer “should inquire further of [an] employee . . . to ascertain whether leave is
potentially FMLA-qualifying” if the employer lacks sufficient information to make
that determination on its own. Id. § 825.301(a). But nothing in the regulations
requires that such inquiry be made in writing. Id. While Van Osten points to 29
C.F.R. § 825.305(d), that provision only requires that an employer make a request
in writing when the employer requires additional evidence to certify an employee’s
medical condition. But the jury found that Van Osten did not receive leave because
she never requested it, not because she lacked a qualifying medical condition.
Accordingly, the writing requirement for medical certification requests is not
2 applicable.1
2. Van Osten argues that the district court erred when it instructed the jury in
Jury Instruction No. 19 that she could not show a “regimen of continuing
treatment” within the meaning of the FMLA just by showing that she was
prescribed medication. Under the FMLA, an employee may demonstrate that she
has a qualifying medical condition by showing that she has a condition requiring
“continuing treatment by a health care provider . . . .” 29 C.F.R. § 825.113(a).
Here, however, the jury found that Van Osten had a qualifying medical condition.
It nevertheless rendered a verdict for Home Depot with respect to her FMLA claim
because she never requested leave. Accordingly, any error in this jury instruction
was harmless, as it did not affect the verdict. See Coston, 13 F.4th at 732 (“[I]f any
error relating to the jury instructions was harmless, we do not reverse.” (quoting
Spencer v. Peters, 857 F.3d 789, 797 (9th Cir. 2017))).
3. Van Osten argues that the district court erred in excluding Amapola
Martin from testifying on her behalf as an expert witness. We review a district
court’s decision to exclude expert testimony for abuse of discretion. United States
v. Telles, 18 F.4th 290, 301 (9th Cir. 2021). Van Osten sought to call Martin to
1 Van Osten also argues that the evidence shows that she did provide notice. But the jury found otherwise, and “we must defer to the facts as they were reasonably found by the jury.” A.D. v. Cal. Highway Patrol, 712 F.3d 446, 459 (9th Cir. 2013).
3 testify that Home Depot did not follow its obligations under the FMLA or the
California Family Rights Act (CFRA), Cal. Gov’t Code § 12945.2. But because
Martin had no relevant expertise, and could therefore offer no expert testimony that
would assist the jury in resolving Van Osten’s claims, the district court did not
abuse its discretion by excluding her testimony. See United States v. 87.98 Acres of
Land More or Less in the Cnty. of Merced, 530 F.3d 899, 904 (9th Cir. 2008)
(citing Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 591 (1993)).
4. Van Osten also appeals the district court’s exclusion of her damages
expert, John Czechowicz. Van Osten failed to preserve this issue for appeal,
however, because the district judge excluded Czechowicz’s testimony without
prejudice in a ruling in limine, and Van Osten never attempted to call Czechowicz
at trial. See Tennis v. Circus Circus Enters., Inc., 244 F.3d 684, 689 (9th Cir.
2001).
5. Van Osten appeals the district court’s grant of summary judgment to
Home Depot on her claims for age and gender discrimination, and failure to
prevent age and gender discrimination, in violation of California’s Fair
Employment and Housing Act (FEHA), Cal. Gov’t Code §§ 12900–12996. “We
review the district court’s decision to grant summary judgment de novo.” Seaplane
Adventures, LLC v. County of Marin, 71 F.4th 724, 729 (9th Cir. 2023).
California law generally requires an employee to bring a complaint of age
4 and gender discrimination before the Department of Fair Employment and Housing
(DFEH) within one year. See McDonald v. Antelope Valley Cmty. Coll. Dist., 194
P.3d 1026, 1036 (Cal. 2008). But Van Osten did not file a claim with the DFEH
until September 18, 2018—more than a year after May of 2017, when she was
briefly terminated and then reinstated at a different store than the one at which she
claims she experienced age and gender discrimination.
Van Osten claims that the “continuing violation” exception brings her claims
within the statute of limitations. But Van Osten makes no argument that the
problems she experienced at the Home Depot store to which she was transferred
were the result of discrimination. And regardless, those problems involved
“decisions made by different decision-makers in unrelated departments.” Morgan
v. Regents of Univ. of Cal., 88 Cal. App. 4th 52, 65 (2000). The continuing
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 26 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
DENISE VAN OSTEN, No. 22-55228
Plaintiff-Appellant, D.C. No. 3:19-cv-02106-TWR-BGS v.
HOME DEPOT USA, INC.; DOES, 1-10, MEMORANDUM* inclusive,
Defendants-Appellees.
Appeal from the United States District Court for the Southern District of California Todd W. Robinson, District Judge, Presiding
Argued and Submitted October 17, 2023 Pasadena, California
Before: PAEZ and H.A. THOMAS, Circuit Judges, and RAKOFF,** District Judge.
Denise Van Osten appeals a jury verdict in favor of Home Depot USA, Inc.
(“Home Depot”) and the imposition of sanctions against her attorney, Kevin
Mirch. We have jurisdiction under 28 U.S.C. § 1291. We affirm.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Jed S. Rakoff, United States District Judge for the Southern District of New York, sitting by designation. 1. Van Osten argues that the district court erred when it declined to instruct
the jury that Home Depot was required to request additional information from her
in writing before denying her leave under the Family and Medical Leave Act
(FMLA) of 1993, 29 U.S.C. § 2601. “We review de novo whether a district court’s
jury instructions accurately state the law, and we review for abuse of discretion a
district court’s formulation of jury instructions.” Coston v. Nangalama, 13 F.4th
729, 732 (9th Cir. 2021) (quoting Hung Lam v. City of San Jose, 869 F.3d 1077,
1085 (9th Cir. 2017)).
Under the FMLA, the burden was on Van Osten to provide “notice of the
need for FMLA leave” and to “explain the reasons for the needed leave . . . .” 29
C.F.R. § 825.301(b). The regulations implementing the FMLA provide that an
employer “should inquire further of [an] employee . . . to ascertain whether leave is
potentially FMLA-qualifying” if the employer lacks sufficient information to make
that determination on its own. Id. § 825.301(a). But nothing in the regulations
requires that such inquiry be made in writing. Id. While Van Osten points to 29
C.F.R. § 825.305(d), that provision only requires that an employer make a request
in writing when the employer requires additional evidence to certify an employee’s
medical condition. But the jury found that Van Osten did not receive leave because
she never requested it, not because she lacked a qualifying medical condition.
Accordingly, the writing requirement for medical certification requests is not
2 applicable.1
2. Van Osten argues that the district court erred when it instructed the jury in
Jury Instruction No. 19 that she could not show a “regimen of continuing
treatment” within the meaning of the FMLA just by showing that she was
prescribed medication. Under the FMLA, an employee may demonstrate that she
has a qualifying medical condition by showing that she has a condition requiring
“continuing treatment by a health care provider . . . .” 29 C.F.R. § 825.113(a).
Here, however, the jury found that Van Osten had a qualifying medical condition.
It nevertheless rendered a verdict for Home Depot with respect to her FMLA claim
because she never requested leave. Accordingly, any error in this jury instruction
was harmless, as it did not affect the verdict. See Coston, 13 F.4th at 732 (“[I]f any
error relating to the jury instructions was harmless, we do not reverse.” (quoting
Spencer v. Peters, 857 F.3d 789, 797 (9th Cir. 2017))).
3. Van Osten argues that the district court erred in excluding Amapola
Martin from testifying on her behalf as an expert witness. We review a district
court’s decision to exclude expert testimony for abuse of discretion. United States
v. Telles, 18 F.4th 290, 301 (9th Cir. 2021). Van Osten sought to call Martin to
1 Van Osten also argues that the evidence shows that she did provide notice. But the jury found otherwise, and “we must defer to the facts as they were reasonably found by the jury.” A.D. v. Cal. Highway Patrol, 712 F.3d 446, 459 (9th Cir. 2013).
3 testify that Home Depot did not follow its obligations under the FMLA or the
California Family Rights Act (CFRA), Cal. Gov’t Code § 12945.2. But because
Martin had no relevant expertise, and could therefore offer no expert testimony that
would assist the jury in resolving Van Osten’s claims, the district court did not
abuse its discretion by excluding her testimony. See United States v. 87.98 Acres of
Land More or Less in the Cnty. of Merced, 530 F.3d 899, 904 (9th Cir. 2008)
(citing Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 591 (1993)).
4. Van Osten also appeals the district court’s exclusion of her damages
expert, John Czechowicz. Van Osten failed to preserve this issue for appeal,
however, because the district judge excluded Czechowicz’s testimony without
prejudice in a ruling in limine, and Van Osten never attempted to call Czechowicz
at trial. See Tennis v. Circus Circus Enters., Inc., 244 F.3d 684, 689 (9th Cir.
2001).
5. Van Osten appeals the district court’s grant of summary judgment to
Home Depot on her claims for age and gender discrimination, and failure to
prevent age and gender discrimination, in violation of California’s Fair
Employment and Housing Act (FEHA), Cal. Gov’t Code §§ 12900–12996. “We
review the district court’s decision to grant summary judgment de novo.” Seaplane
Adventures, LLC v. County of Marin, 71 F.4th 724, 729 (9th Cir. 2023).
California law generally requires an employee to bring a complaint of age
4 and gender discrimination before the Department of Fair Employment and Housing
(DFEH) within one year. See McDonald v. Antelope Valley Cmty. Coll. Dist., 194
P.3d 1026, 1036 (Cal. 2008). But Van Osten did not file a claim with the DFEH
until September 18, 2018—more than a year after May of 2017, when she was
briefly terminated and then reinstated at a different store than the one at which she
claims she experienced age and gender discrimination.
Van Osten claims that the “continuing violation” exception brings her claims
within the statute of limitations. But Van Osten makes no argument that the
problems she experienced at the Home Depot store to which she was transferred
were the result of discrimination. And regardless, those problems involved
“decisions made by different decision-makers in unrelated departments.” Morgan
v. Regents of Univ. of Cal., 88 Cal. App. 4th 52, 65 (2000). The continuing
violation exception therefore does not apply. See id.
Van Osten also argues that the statute of limitations should be equitably
tolled because she tried to contact Home Depot many times regarding the problems
she faced. But the informal communications she had with Home Depot do not
constitute the kind of “established procedural context” for pursuing a grievance
that is necessary to support equitable tolling. Acuna v. San Diego Gas & Elec. Co.,
217 Cal. App. 4th 1402, 1416 (2013). Thus, Van Osten’s discrimination claims are
barred by the statute of limitations.
5 6. Van Osten appeals the district court’s grant of summary judgment to
Home Depot on her retaliation claim. To make out a claim for retaliation under the
FEHA, Van Osten must show that her employer subjected her to an adverse
employment action because she engaged in a protected activity. Yanowitz v.
L’Oreal USA, Inc., 116 P.3d 1123, 1130 (Cal. 2005). The only acts within the
limitations period that Van Osten claims were retaliatory relate to her treatment at
the store to which she was transferred in May of 2017. But Van Osten never
presented any evidence that these acts were retaliatory. For this reason, Van
Osten’s retaliation claim also fails.
7. Van Osten appeals the district court’s grant of summary judgment on her
claims for intentional and negligent infliction of emotional distress. Van Osten
began to experience emotional distress by July 25, 2017, more than two years
before she filed suit. Accordingly, her claims are barred by the statute of
limitations. Wassmann v. S. Orange Cnty. Cmty. Coll. Dist., 24 Cal. App. 5th 825,
852–53 (2018); Cal. Civ. Proc. Code § 335.1.
Van Osten argues that certain conduct within the limitations period
contributed to her emotional distress, including Home Depot’s failure to reinstate
her healthcare benefits or provide her FMLA leave, its improper processing of
worker’s compensation paperwork, and its conduct leading to her resignation. But
none of these acts constitute the kind of “extreme and outrageous conduct” that can
6 give rise to a claim for intentional infliction of emotional distress. Cf. King v. AC
& R Advert., 65 F.3d 764, 769–70 (9th Cir. 1995) (internal quotation marks
omitted) (finding that age-related comments and adjustments to an employee’s
employment status and compensation structure did not constitute extreme and
outrageous conduct). And California law precludes a claim for negligent infliction
of emotional distress based on an employer’s supervisory conduct. Semore v. Pool,
217 Cal. App. 3d 1087, 1105 (1990).
8. Van Osten appeals the district court’s grant of summary judgment to
Home Depot regarding her claim for punitive damages. For the reasons discussed
above, Van Osten has no claim even for compensatory damages. Accordingly, the
grant of summary judgment to Home Depot on her claim for punitive damages
must be affirmed. Riley’s Am. Heritage Farms v. Elsasser, 32 F.4th 707, 730 n.13
(9th Cir. 2022).
9. Van Osten appeals the district court’s ruling providing each party with
eight hours to present their case at trial. We review the district court’s setting of
trial time limits for abuse of discretion. Pierce v. County of Orange, 526 F.3d
1190, 1199–1200 (9th Cir. 2008). Van Osten does not identify any additional
witnesses she would have called or evidence she would have introduced had she
been allotted more time, and does not claim that the time limit was imposed
unevenly or inflexibly. Accordingly, Van Osten has not shown that the time limit
7 was an abuse of discretion. See id. at 1200.
10. Van Osten appeals the district court’s imposition of sanctions on her
attorney, Kevin Mirch, for his time-consuming and frivolous objections, and rude
conduct toward opposing counsel during the deposition of Martin. “The sanctions
order is reviewed for abuse of discretion, and the underlying factual findings for
clear error.” Sali v. Corona Reg’l Med. Ctr., 884 F.3d 1218, 1221 (9th Cir. 2018).
Mirch argues that he was deprived of due process when the magistrate judge
provided several bases for sanctioning him—including Federal Rule of Civil
Procedure 30 and the court’s inherent power—that Home Depot did not raise in its
initial motion for sanctions. But Mirch had the opportunity to object to the
magistrate judge’s report and recommendation before the district court issued
sanctions. That “opportunity to brief the issue fully satisfies due process
requirements.” Pac. Harbor Cap., Inc. v. Carnival Air Lines, Inc., 210 F.3d 1112,
1118 (9th Cir. 2000).
Mirch also argues that his objections during the deposition were reasonable,
and that the district court’s imposition of sanctions was based on several
misstatements of fact. But even if, as Mirch argues, the magistrate judge
marginally misstated the amount of time Mirch took up with lengthy speaking
objections, the district court’s finding that Mirch spent the course of the deposition
making frivolous and irrelevant objections to opposing counsel’s questions was not
8 clearly erroneous. The record also supports the finding that Mirch harassed
opposing counsel and accused her of acting with an ulterior motive. The district
court therefore did not abuse its discretion in imposing sanctions.
AFFIRMED.