Flores v. DISH Network LLC

• Court: District Court, D. Arizona
• Decided: June 16, 2021
• Docket: 2:19-cv-05293
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Melin Flores, No. CV-19-05293-PHX-ROS

10 Plaintiff, ORDER

11 v.

12 DISH Network LLC, et al.,

13 Defendants. 14 15 Melin Flores was working for DISH Network when she began having back pain and 16 missing days of work. The parties disagree on whether Flores’ supervisor knew of her 17 difficulties and whether he instructed Flores how to pursue options she might have under 18 the Family Medical Leave Act of 1993 or the Americans with Disabilities Act of 1990. It 19 is undisputed, however, that during an in-person meeting with her immediate supervisor 20 and another supervisor, Flores was told she was being fired for excessive absences. 21 According to one of the supervisors, during the meeting Flores tried to explain “something 22 along the lines of being in the hospital for passing a kidney stone” and that she was “slated 23 to go back to surgery or had to go back to the hospital, something along those lines.” (Doc. 24 47-1 at 70). That supervisor concluded Flores’ statements were sufficient to indicate Flores 25 might need leave or other accommodations. Despite reaching that conclusion, the 26 supervisor decided to proceed with the termination. (Doc. 47-1 at 70). Flores subsequently 27 filed this suit, alleging FMLA and ADA claims. 28 The parties have filed cross-motions for summary judgment. There are many factual 1 disputes but there is undisputed evidence establishing DISH’s liability under Flores’ 2 FMLA interference claim. Only DISH moved for summary judgment on the other claims 3 and DISH’s motion regarding those claims will be denied in large part. The parties will be 4 required to brief whether Flores is entitled to summary judgment on some of her other 5 claims. Finally, DISH’s counsel will be required to establish their summary judgment 6 arguments and factual positions had a good faith basis. 7 BACKGROUND 8 The parties’ cross-motions for summary judgment require the Court view the facts 9 differently depending on which motion is being resolved. Many of the facts, however, are 10 undisputed. Unless otherwise indicated the following facts are undisputed. 11 As of June 2018, Flores was working for DISH in a customer service position. (Doc. 12 49 at 1). Flores was subject to DISH’s “point-based attendance policy.” (Doc. 49 at 2). 13 Somewhat simplified, that policy awarded an employee one point if she had an 14 unauthorized absence and ½ point if she arrived late or left early. (Doc. 49-3 at 39). An 15 employee who accumulated eight points in a twelve-month period would be terminated. 16 The policy did not award points for absences, late arrivals, or early departures related to 17 FMLA leave or ADA accommodations. 18 If an employee was going to miss work or arrive late, she was required to call 19 DISH’s “attendance line.” (Doc. 49 at 2). That line was described by Flores’ direct 20 supervisor Brandon Brown as the number an employee would call to inform DISH she was 21 “not going to make it in, or whatever it may be, or [she is] going to be late.” (Doc. 49-3 at 22 26). The attendance line employee would then “code it either late or absent.” (Doc. 49-3 23 at 26). Regardless of what the employee said to the attendance line, the attendance line 24 employee would not take any steps regarding a possible entitlement to leave. (Doc. 49-3 25 at 30). That is, if an employee provided information that indicated the employee might 26 need FMLA leave or ADA accommodations, the attendance line employee would not take 27 any action. Instead, it was up to the employee calling the attendance line to request to be 28 1 transferred to a manager to discuss possible leave or accommodations. (Doc. 49-3 at 30).1 2 Instead of using the attendance line for situations where an employee might need 3 leave or accommodations, DISH tried to funnel all such situations to what it describes as 4 the “leaves line” or “leaves team.” The “leaves team” was reached through a telephone 5 number or email address administered by individuals at DISH’s corporate headquarters. 6 (Doc. 49-3 at 47). As explained by a DISH “senior human resources associate,” DISH had 7 an “open door policy” that allowed an employee in need of leave or an accommodation to 8 speak with the individual she “felt most comfortable with.” (Doc. 49-3 at 49). Thus, an 9 employee could speak to a human resources representative, a “manager, supervisor, site 10 leader, whoever they wanted to talk to to initiate the process.” (Doc. 49-3 at 50). Once an 11 employee spoke to such an individual, DISH’s policy was for the employee to be told she 12 “needed to explicitly contact the leaves team, whether that be via phone or via email, to 13 initiate the process.” (Doc. 49-3 at 50). When an employee contacted the leaves team, that 14 team would work with the employee regarding submission of appropriate paperwork. The 15 leaves team would then determine whether the employee was entitled to leave or 16 accommodations and, if needed, the leaves team would communicate the leave or 17 accommodation requirements to the employee’s supervisors. (Doc. 49-3 at 51). 18 According to DISH, the leaves team was advertised “on numerous posters across 19 the building,” there was information about the team on a website the employees could 20 access through their work computers, and there were business cards with information about 21 the leaves team “throughout the entire [work] site.” (Doc. 49-3 at 56). Employees were 22 also told about the leaves team during their “new-hire training.” (Doc. 49-3 at 56). Flores’ 23 supervisor claims he gave Flores a business card with information regarding the leaves 24 team on two occasions. (Doc. 49-3 at 13). According to Flores, however, she was unaware

25 1 Brown initially testified if an employee called the attendance line “and said they were in the hospital, usually those go over – [the attendance line] will transfer to a manager or 26 someone in a different position to handle that type of situation.” (Doc. 49-3 at 27). But during subsequent questioning, Brown clarified the burden was solely on the employee to 27 request to speak to someone else if she needed leave. Brown testified that when an employee calls and “it is a larger issue and they state that on the call . . . and they ask to 28 speak to someone about what they can do for attendance, that’s when they are transferred to someone else.” (Doc. 49-3 at 28) (emphasis added). 1 of the leaves team and the need to contact the leaves team if she needed leave or an 2 accommodation. (Doc. 47-1 at 18). 3 For purposes of summary judgment, it is important to stress that DISH’s human 4 resources employee described DISH’s policies as allowing an employee to raise a leave or 5 accommodation issue with “whoever” she was most comfortable with.2 Accordingly, an 6 employee was free to raise the possible need for leave with, for example, her direct 7 supervisor. Once she did, the direct supervisor was supposed to instruct the employee to 8 contact the leaves team. Accordingly, while DISH formally processed leave or 9 accommodation requests through the leaves team, there is no evidence an employee raising 10 an issue with supervisory personnel was contrary to DISH policy. 11 The relevant facts regarding Flores’ termination begin in November 2018. At that 12 time, Flores was working four ten-hour shifts, Friday through Monday. (Doc. 47-1 at 21). 13 At that time, Flores had already accumulated 6.5 points under the attendance policy. 14 Flores’ 6.5 points was close to the eight-point threshold for termination. (Doc. 49-3 at 80, 15 82). In late November 2018, Flores began experiencing “intense back pain” but she 16 continued to work. (Doc. 47-1 at 63). Brown admitted during his deposition that he “knew 17 [Flores] was having something” and Flores “mentioned . . . something with” back pain. 18 But Brown did not “dive into what” the issue was. (Doc. 47-1 at 55). Flores continued to 19 work her assigned shifts in late November and early December. 20 Flores made a doctor’s appointment for Thursday, December 13, a day Flores was 21 not scheduled to work. (Doc. 47-1 at 6). Flores claims her behavior at work around this 22 time made it obvious she was in significant pain. Flores claims she was walking slowly, 23 had to sit down and stand up slowly, and had to wrap herself in a blanket. (Doc. 49-2 at 24 79). Flores’ supervisors, however, do not recall ever seeing such behavior. 25 As of December 13, Flores’ pain was so severe that she needed help from her mother 26 2 The governing regulation requires an employee in need of leave “comply with the 27 employer’s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances.” 29 C.F.R. § 825.303(c). While DISH formally 28 administered leave requests through the leaves team, an employee was free to make an initial request with any supervisor. 1 or sister to get into a sitting or standing position. (Doc. 47-1 at 8). Flores could not drive 2 due to the pain, so her mother drove her to the doctor’s appointment. (Doc. 47-1 at 63). 3 At the appointment Flores was diagnosed with a urinary tract infection and given 4 antibiotics. (Doc. 49-3 at 67). Flores took the medication and felt slightly better. Flores 5 was scheduled to work on Friday, December 14th. On the morning of the 14th, however, 6 she was in too much pain to attend work. (Doc. 47-1 at 7, 8). Flores informed DISH she 7 would not attend work and she remained in bed all day on the 14th. (Doc. 47-1 at 10). The 8 pain improved enough the next day such that Flores was able to work her shift on Saturday, 9 December 15th. 10 According to Flores, while at work on the 15th Brown asked her if she was feeling 11 better. She told him “Yes, I’m feeling better.” (Doc. 47-1 at 12). Flores also claims she 12 and Brown had a separate conversation where she told him “it was going to be probably 13 my kidney.” (Doc. 47-1 at 12). Brown allegedly responded that “he might have had or 14 one of his family might have had an issue with the kidney” and he agreed kidney issues 15 could be painful. (Doc. 47-1 at 13). Brown agrees he might have asked Flores if she was 16 feeling better but he does not remember the specifics of the conversation. (Doc. 47-1 at 17 55). Flores worked her full shift on the 15th and the following day, Sunday, December 18 16th. (Doc. 49-2 at 45). 19 Flores was scheduled to work on Monday, December 17th. She woke up that day 20 in pain, although the pain had shifted locations. (Doc. 49-2 at 47). Flores called her doctor 21 and was told to come in for another appointment and, if necessary, she would be referred 22 to a hospital. Flores then called the attendance line at DISH. The only evidence regarding 23 what Flores told the attendance line comes from Flores. According to Flores, she told the 24 attendance line: “I was sick, that I was being sick, that I went to the doctor already, that 25 they gave me medication but I still have pain. . . . I was advised to go in for more tests, and 26 possible [sic], you know, referred to the hospital.” (Doc. 49-2 at 48). The attendance line 27 employee told Flores he would mark her down as unable to work the entire day but if she 28 “was able to go on in to work, then that’s fine, and [Flores should] just let know [sic] the 1 manager in charge what was happening.” (Doc. 49-2 at 49). Flores missed the entire day 2 of work on the 17th. That absence brought her “attendance point” total to 8.5, above the 3 8-point threshold for termination. At Flores’ medical appointment on December 17th, she 4 was diagnosed with an ongoing urinary tract infection and given additional medication. 5 (Doc. 49-2 at 57). 6 Flores was not scheduled to work December 18th through the 20th. During her time 7 off, however, Flores remained in significant pain. Flores testified that, from December 17- 8 20, she was confined to her bed. The relevant deposition testimony is as follows: 9 Question: Is there any activities that you believe you were unable to do because of your medical condition that you had at 10 that time? I know it got worse later, but at that time in that week. 11 Flores: In that week? I mean, I wasn’t feeling well. That’s the 12 main reason that I went to the doctor. And I stayed in bed the days that I was – you know, they were my days off, to make 13 sure that I have the actual energy to go back on – on Friday. 14 Because, like I said before, like, it was, like, I would get up and then walk, and then my thing about I was exhausted like it 15 wasn’t – and then the pain. So it’s a draining situation that I had going on that I – 16 17 (Doc. 49-2 at 76).3 Defense counsel then asked follow-up questions regarding the extent 18 of Flores’ limitations that week: 19 Question: Was there anything, as you sit here today, that you were unable to do because of either [pain or fatigue]? 20 Flores: I’m not sure I’m not understanding the question. Not 21 do as in? 22 Question: Well, any activities? For example, you know, you said you could shower, you could bathe yourself? 23 Flores: Yes. 24 Question: Were there any activities like that that you could not 25 3 The parties have identified this deposition testimony as addressing a period before 26 December 13th. (Doc. 46 at 5; Doc. 52 at 3). But the testimony makes clear Flores is describing the period from December 17-20. The deposition describes Flores visiting a 27 doctor on “Monday,” which must have been December 17th as Flores’ other medical appointment was on Thursday, December 13th. Counsel then asked Flores about her pain 28 “at that time in that week” to which Flores responded about her need to stay in bed to prepare for work on Friday. (Doc. 49-2 at 75-76). 1 do? 2 Flores: Other than the normal taking care of myself, it was – that’s about it what I could do. Nothing else. 3 Question: You made your own food? 4 Flores: It was actually my mom. I would get out and, you 5 know, grab the food and then eat, but to the point that me actually making the food, I couldn’t get through the whole 6 process. 7 Question: Okay. And that was in that week? 8 Flores: That was in – yes. 9 While Flores was off, Brown sent an email to the leaves team, inquiring whether 10 Flores had any pending requests. (Doc. 49-3 at 85). The leaves team responded Flores had 11 no “pending or approved claims.” (Doc. 49-3 at 85). Brown then informed the leaves team 12 Flores did not work until the 21st but he would “process the term[ination] for her on this 13 date.” (Doc. 49-3 at 85). 14 On December 21st, Flores arrived at work. According to her, she had interpreted 15 the statements by the attendance line on the 17th about speaking to a manager to mean she 16 should speak to a manager about her medical issues when she returned to work. Thus, on 17 December 21st Flores brought to work her “doctor’s documents . . . to show them . . . so 18 [DISH] could know that I wasn’t missing work just to miss work, that I was missing work 19 because I was going through all that.” (Doc. 47-1 at 25). Before speaking with a manager, 20 Flores “worked a couple hours.” Brown then summoned her to a meeting. (Doc. 47-1 at 21 25). The meeting was with Flores, Brown, and Brown’s supervisor Diana Angulo. (Doc. 22 49-3 at 22). Brown began by going “through the attendance record and the attendance 23 policy guidelines.” (Doc. 47-1 at 68). Brown then stated “effective immediately, we’re 24 terminating your employment.” 25 During her deposition, Angulo described the following regarding Flores’ reaction 26 to Brown’s statement: 27 I remember her getting emotional and discussing some of the 28 health issues that she was dealing with. I remember she said something along the lines of being in the hospital for passing a 1 kidney stone. I did a quick pulse check naturally, me being, you know, concerned over someone’s health and the fact that 2 she was back to work. I said, are you – I’m sorry to hear that, you know. I hope you’re feeling better now. Are you okay? 3 She shared with me that she was, I think, slated to go back to 4 surgery or had to go back to the hospital along those lines. And I probably concluded the conversation with saying, you know, 5 at this point, we have already reviewed your entire attendance record. We have nothing to fall back on. At this point, we’re 6 going to be separating employment. 7 (Doc. 47-1 at 70). After providing that description, Angulo was asked the following 8 regarding Flores’ possible entitlement to leave or other accommodations: 9 Question: In that conversation, she did tell you she was going 10 to have to go back to the hospital; is that right? 11 Angulo: I believe she did say that, yes. 12 Question: At any point during your conversation with the termination, did you think that she might qualify for leave? 13 Angulo: The only thing that I can say there is that what she had 14 shared at the table at the time of termination would have potentially qualified for a leave – I don’t know for certain – if 15 she would have followed the right protocol. I went into the termination knowing that there was no attempt to try to 16 approve those absences through a certification. 17 (Doc. 47-1 at 71-72). 18 It is undisputed that, at some point during this meeting, Flores presented some of 19 her medical records to Angulo. (Doc. 47-1 at 58). When asked what would have happened 20 if Flores had presented those records to Brown earlier, he stated he “could have given it to 21 HR” to see if they could avoid terminating her. (Doc. 47-1 at 59-60). It is further 22 undisputed that if Flores’ absence on December 17th had been approved, she would not 23 have been terminated. (Doc. 47-1 at 67). 24 After she was terminated, Flores continued to seek medical care for her pain. 25 Approximately two weeks later, on January 5, 2019, Flores was diagnosed with a renal 26 cyst. (Doc. 47-1 at 42). From January 13, 2019 through January 30, 2019, Flores was 27 hospitalized and treated for the cyst and other conditions, including “severe sepsis.” (Doc. 28 47-1 at 51). As described in her medical records, as of January 13th, Flores’ condition was 1 so severe that she had a “high probability of imminent or life threatening deterioration.” 2 (Doc. 47-1 at 51). Flores recovered, however, and eventually filed the present suit. 3 Flores is pursuing claims which she identifies as: 1) FMLA Interference; 2) FMLA 4 Retaliation; and 3) ADA Violations. (Doc. 1-1 at 21-22). Flores now seeks summary 5 judgment only on her first claim of “FMLA Interference.” (Doc. 46). DISH seeks 6 summary judgment on all claims. 7 ANALYSIS 8 I. FMLA Interference 9 A claim of FMLA interference requires an employee establish five elements: “(1) 10 he was eligible for the FMLA’s protections, (2) his employer was covered by the FMLA, 11 (3) he was entitled to leave under the FMLA, (4) he provided sufficient notice of his intent 12 to take leave, and (5) his employer denied him FMLA benefits to which he was entitled.” 13 Escriba v. Foster Poultry Farms, Inc., 743 F.3d 1236, 1243 (9th Cir. 2014). The parties 14 agree the first two elements are met but they disagree on the remaining three. Viewing the 15 facts in the light most favorable to DISH, Flores is entitled to summary judgment. 16 A. Entitlement to Leave 17 The first disputed element is whether Flores was “entitled to leave under the 18 FMLA.” Id. Under the FMLA’s statutory text, an employee is entitled to FMLA leave if 19 “a serious health condition . . . makes the employee unable to perform the functions of [her] 20 position.” 29 U.S.C. § 2612(a)(1)(D). This entitlement can be broken down into discrete 21 requirements that an employee have a “serious health condition” that makes her “unable to 22 perform” her position. The evidence viewed in the light most favorable to DISH 23 establishes Flores meets both requirements. 24 i. Serious Health Condition 25 The FMLA defines “serious health condition” as “an illness, injury, impairment, or 26 physical or mental condition that involves . . . continuing treatment by a health care 27 provider.” 29 U.S.C. § 2611(11). The relevant regulation explains a “serious health 28 condition involving continuing treatment by a health care provider” includes “[a] period of 1 incapacity of more than three consecutive, full calendar days . . . that also involves . . . 2 [t]reatment two or more times, within 30 days of the first day of incapacity.” 29 C.F.R. § 3 825.115(a). The regulation defines incapacity as the “inability to work, attend school or 4 perform other regular daily activities due to the serious health condition.” 29 C.F.R. § 5 825.113(b). For purposes of the present case, these provisions can be combined such that 6 an employee has a qualifying “serious health condition” if she was unable to perform 7 “regular daily activities” for a period of three consecutive days and she received medical 8 treatment at least twice in a 30-day period. 9 It is undisputed Flores initially received medical care for her pain on December 13th 10 and she received additional medical care on December 17th. Thus, she received medical 11 treatment the requisite two times within a 30-day period. Next, Flores experienced a four- 12 day period of “incapacity” from December 17th through December 20th. Flores was too 13 sick to work on Monday, December 17th. (Doc. 49-2 at 47-48). From December 17-20, 14 Flores “wasn’t feeling well” and, as she testified to in her deposition, “I stayed in bed the 15 days that I was – you know, they were my days off, to make sure that I have the actual 16 energy to go back on – on Friday.” (Doc. 49-2 at 76). Flores also testified that she was 17 unable to prepare her own food. Being confined to one’s bed and unable to prepare food 18 establish an inability to perform regular daily activities. Accordingly, the evidence viewed 19 in the light most favorable to DISH, establishes Flores had a “serious health condition.” 20 DISH disagrees and argues Flores’ “did not have a serious health condition” prior 21 to her termination on December 21st. (Doc. 48 at 6). DISH claims that during the last 22 month of her employment, Flores’ “only medical condition . . . was a UTI, which resolved 23 after a course of antibiotics.” (Doc. 48 at 6). DISH explains Flores’ UTI was “inconvenient 24 and even painful,” but it “was not a serious health condition under the FMLA.” (Doc. 48 25 at 7). DISH goes so far as to claim Flores’ UTI “did not incapacitate her in any way” while 26 she was employed at DISH. (Doc. 48 at 6). These arguments are directly contradicted by 27 the record. 28 The initial problem with DISH’s position is the insistence that Flores’ only medical 1 condition in November and December 2018 was a UTI. It is true the only condition 2 diagnosed at that time was a UTI. However, DISH does not establish why the Court, as a 3 matter of law, must ignore subsequent events that might indicate Flores was suffering from 4 something beyond a simple UTI. Flores began experiencing pain in November 2018. In 5 early December, she was diagnosed as having a UTI. She did not experience much relief 6 but that remained the only diagnosis after her second medical appointment on December 7 17th. Flores was terminated on December 21st. Flores then continued to have pain and, 8 approximately two weeks later, she was diagnosed with a renal cyst and hospitalized for 9 two weeks. Claiming Flores’ initial diagnoses must have been correct, and she only had 10 an UTI at the relevant time, is possible. But it is not an undisputed possibility. By seeking 11 summary judgment, DISH somehow concluded the evidence, viewed in the light most 12 favorable to Flores, established her medical condition in December necessarily was a minor 13 ailment. That was not a legitimate basis for seeking summary judgment. See, e.g., 14 Caldwell v. Holland of Texas, Inc., 208 F.3d 671, 677 (8th Cir. 2000) (“The employer who 15 precipitously fires an employee, when the latter claims the benefits of leave under FMLA, 16 bears the risk that the health condition in question later develops into a serious health 17 condition within the meaning of [the applicable regulation].”). 18 The more basic problem with DISH’s position is the assumption that a UTI, per se, 19 cannot qualify as a “serious health condition.” DISH cites no authority and it is obviously 20 incorrect. For purposes of determining if Flores had a qualifying medical condition under 21 the FMLA, the relevant inquiry is not the exact diagnosis Flores had at a particular moment 22 in time. Rather, the inquiry depends on the limitations Flores was experiencing.4 Under 23 DISH’s approach, if an employee were initially diagnosed with a “common cold” that 24 would necessarily prevent the employee from qualifying for FMLA leave. Even if the 25 initial diagnosis was later deemed incorrect and the true diagnosis was far more serious, 26 DISH believes the employee would not be entitled to FMLA benefits. The FMLA does

27 4 This is illustrated by the relevant regulation stating an individual can obtain FMLA leave to obtain “examinations to determine if a serious health condition exists.” 29 C.F.R. § 28 825.113(c). In other words, an employee can take advantage of FMLA leave before she even has a formal medical diagnosis. 1 not operate in such a bizarre fashion. See Hodgens v. Gen. Dynamics Corp., 144 F.3d 151, 2 163 (1st Cir. 1998) (discussing FMLA and concluding it was “unlikely that Congress 3 intended to punish people who are unlucky enough to develop new diseases, or to suffer 4 serious symptoms for some period of time before the medical profession is able to diagnose 5 the cause of the problem”); Johnson v. Benton Cty. Sch. Dist., 2013 WL 12180097, at *9 6 (N.D. Miss. Feb. 21, 2013) (“The FMLA protects employees suffering from serious 7 medical conditions, not merely those with a clear and certain prognosis.”). 8 DISH’s support for its diagnosis-only view of the FMLA’s “serious health 9 condition” requirement relies on a misleading citation of the governing regulation. 10 According to DISH, 29 C.F.R. § 825.113(d) states “the common cold, the flu, ear aches, 11 upset stomach, minor ulcers, headaches other than migraine, routine dental or orthodontia 12 problems, periodontal disease, etc., are examples of conditions that do not meet the 13 definition of a serious health condition and do not qualify for FMLA leave.” (Doc. 48 at 14 7). But DISH deleted the crucial introductory phrase to that list of ailments. The regulation 15 begins “[o]rdinarily, unless complications arise,” the common cold and the other listed 16 conditions will not qualify as serious health conditions. 29 C.F.R. § 825.113(d). Thus, the 17 regulation does not mean someone who contracts a common cold, but lapses into a coma, 18 is categorically ineligible for FMLA benefits. Rather, the regulation focuses on an 19 individual’s medical condition, regardless of formal diagnosis, which must control. 20 Beyond its misguided focus on Flores’ formal diagnosis, DISH also contends Flores 21 was never “incapacitated” as required by the regulations. This argument, however, is based 22 on misrepresentations of the record and governing law that require a detailed explanation. 23 According to DISH, “[w]hile [Flores] chose not to report to work following her 24 doctor’s visit on December 17, 2018, she admits she was fully capable of working on that 25 day and intended to report to work after her doctor’s visit. SOF 25.” (Doc. 48 at 6). 26 Paragraph 25 in DISH’s Statement of Facts states, in relevant part, 27 Flores believed she would be reporting for work later that day and did not tell the attendance line she was unable to work. 28 Exhibit A, 125:18-126:10. Ultimately, Flores chose not to report to work. Exhibit A, 173:7-12. 1 (Doc. 49 at 5). The immediate difficulty for DISH is that their motion says Flores “admits 2 she was fully capable of working” on December 17th but DISH’s Statement of Facts does 3 not include that assertion. The more important aspect, however, is that the portions of 4 Flores’ deposition referenced in the Statement of Facts do not include a statement by Flores 5 that “she was fully capable of working.” Instead, the cited portions of Flores’ deposition 6 merely state Flores expected she would be able to work. 7 Not content on making a misrepresentation regarding Flores’ condition on 8 December 17th, DISH then argues “during [Flores’] days off between December 18-20, 9 Flores was fully able to care for herself and perform her regular daily activities (SOF 27) 10 and again reported to duty on December 21, 2018, ready and able to work her full shift.” 11 (Doc. 48 at 7). The cited portion of the Statement of Facts states 12 During her days off, Flores was able to get out of bed, shower, and care for herself. Exhibit A, 173:12-21. Flores reported to 13 work as scheduled on Friday, December 21, 2018, expecting to work a full day. Exhibit A, 173:22-174:3. 14 15 (Doc. 49 at 6). Again, the motion makes the bold inaccurate statement that Flores was 16 “fully able to care for herself and perform her regular daily activities” from December 18th 17 through December 20th. But the cited deposition testimony says no such thing. 18 It is true that Flores testified she was able to get out of bed, care for herself, and 19 shower from December 17th through December 20th. (Doc. 49-2 at 75). But seconds after 20 giving that testimony, Flores testified she stayed in bed for those four days “to make sure 21 [she had] the actual energy” to work on Friday. DISH’s counsel then sought clarification 22 and Flores stated, during that week, she could perform basic tasks of self-care such as 23 showering but “[n]othing else.” (Doc. 47-1 at 23). When asked if she made her own food 24 during those days, Flores responded: 25 It was actually my mom. I would get out and, you know, grab the food and then eat, but to the point that me actually making 26 the food, I couldn’t get through the whole process. 27 (Doc. 47-1 at 23). So, to be clear, DISH’s motion argues Flores was “fully able to care for 28 herself and perform her regular daily activities” from December 17th through December 1 20th, but Flores’ deposition states she was effectively bedbound those days, able to perform 2 basic self-care tasks and “nothing else.” Flores could not even her own meals. The Court 3 questions how DISH’s counsel could argue, in good faith, that Flores was “fully able to 4 care for herself and perform her regular daily activities” in light of Flores’ deposition 5 testimony. 6 Finally, DISH argues “Flores’ self-serving testimony, standing alone, is insufficient 7 to prove incapacity under the FMLA.” (Doc. 52 at 4). DISH then provides a string citation 8 of cases from the District of Nevada, the District of Oregon, the Third, Sixth, Seventh,5 9 and Eighth Circuits. (Doc. 52 at 4). Notably missing from DISH’s list of citations is the 10 Ninth Circuit authority that controls. And assuming DISH’s counsel read the cases they 11 cite, it is impossible to conclude they were unaware of the governing Ninth Circuit 12 authority.6 13 In 1999, the Ninth Circuit addressed an FMLA dispute where an individual had been 14 assaulted by several of his friends. Marchisheck v. San Mateo County, 199 F.3d 1068, 15 1071 (9th Cir. 1999). There were medical records showing the injuries from that assault 16 were relatively minor. Id. But there was also a declaration from the individual saying his 17 injuries meant he “could not do anything for four or five days.” Id. at 1074. The Ninth 18 5 DISH cites Caskey v. Colgate-Palmolive Co., 535 F.3d 585, 591 (7th Cir. 2008) as 19 “holding that some medical evidence is necessary to establish a serious health condition.” (Doc. 52 at 4). That is an accurate statement regarding the holding in Caskey but it is 20 irrelevant to the precise issue of “incapacity.” As the Seventh Circuit subsequently noted, under the FMLA “‘incapacity’ and ‘serious health condition’ are interrelated” but “they 21 are not interchangeable terms.” Hansen v. Fincantieri Marine Grp., LLC, 763 F.3d 832, 836 (7th Cir. 2014). Therefore, Caskey “stand[s] for the unsurprising proposition that a 22 plaintiff needs some medical evidence to establish a serious health condition.” Id. at 838. But “incapacity can be established by lay testimony and expert medical testimony is not 23 required to prove the incapacity.” Id. 6 Because there is binding Ninth Circuit authority the Court need not discuss the authority 24 from the Districts of Nevada and Oregon in detail. However, the District of Nevada case involved testimony from the plaintiff alleging he was entitled to FMLA leave due to 25 anxiety. However, that employee “stated in his deposition that he could still do his job and reach his goals despite his anxiety.” Nagy v. W. All. Bank, No. 216CV2095JCMGWF, 26 2018 WL 3094874, at *5 (D. Nev. June 22, 2018). In fact, the plaintiff had not identified any period of incapacity. Id. at *4 n.2. As for the District of Oregon case, the plaintiff 27 admitted “she was not incapacitated for more than three days until . . . one week after she was terminated.” Nelson v. Fiskars Brands, Inc., No. 03:14-CV-00685-SB, 2015 WL 28 5566454, at *12 (D. Or. Sept. 13, 2015). Neither of these cases is of any use to the present situation. 1 Circuit explained the parties disagreed on whether the injuries “incapacitated” the 2 individual as contemplated by the FMLA regulations. Id. In the Ninth Circuit’s view, the 3 individual’s declaration was sufficient to “create[] a disputed issue of fact and precludes 4 summary judgment on the issue of ‘incapacity.’” Id. Accordingly, in the Ninth Circuit, 5 lay testimony on its own can be sufficient to establish “incapacity” under the FMLA. 6 DISH does not cite Marchisheck. Instead, DISH cites a Third Circuit case, i.e. 7 Schaar v. Lehigh Valley Health Services, Inc., 598 F.3d 156 (3d Cir. 2010). DISH claims 8 that case concluded “some medical evidence is necessary to show the incapacitation was 9 ‘due to’ the serious health condition.” (Doc. 52 at 4). DISH is correct the Third Circuit 10 concluded an employee can only “satisfy her burden of proving three days of incapacitation 11 through a combination of expert medical and lay testimony.” Id. Accordingly, in the Third 12 Circuit, if an employee does not offer medical testimony that the employee was 13 incapacitated, the claim fails as a matter of law. Id. In reaching this rule, however, the 14 Third Circuit explicitly noted it was adopting a different rule from the Ninth Circuit. The 15 Third Circuit explained the Ninth Circuit had already held “that lay testimony is sufficient, 16 by itself, to establish incapacitation.” Id. at 160. The Third Circuit then said it was 17 adopting a different rule: “Contrary to the . . . Ninth Circuit[], however, we do not find lay 18 testimony, by itself, sufficient to create a genuine issue of material fact.” Id. at 161. 19 Given that Schaar explicitly discusses Marchisheck and DISH’s counsel cites 20 Schaar, the Court can only conclude counsel must have been aware of Marchisheck. Yet 21 counsel chose not to cite Marchisheck. As set out in more detail later, DISH’s counsel will 22 be required to establish a good faith basis for citing Schaar without alerting the Court that 23 Marchisheck controlled. 24 In any event, under Ninth Circuit law, lay testimony is sufficient to establish 25 incapacitation. Flores testified she was incapacitated from December 17th through 26 December 20th. DISH has not pointed to any evidence Flores was not, in fact, 27 incapacitated during that time period. Thus, Flores is entitled to summary judgment on the 28 issue of incapacitation and, more generally, Flores is entitled to summary judgment that 1 she had a “serious health condition” as contemplated by the FMLA during the last week of 2 her employment with DISH. 3 ii. Unable to Perform Functions 4 To be entitled to FMLA leave, a “serious health condition” is not enough. The 5 medical condition must have rendered the employee “unable to perform the functions of 6 [her] position.” 29 U.S.C. § 2612(a)(1)(D). The governing regulation states “[a]n 7 employee is unable to perform the functions of the position where the health care provider 8 finds that the employee is unable to work at all or is unable to perform any one of the 9 essential functions of the employee’s position within the meaning of the Americans With 10 Disabilities Act.” 29 C.F.R. § 825.123(a). 11 The parties have not focused on this requirement and, based on the finding that 12 Flores was unable to perform her regular daily activities from December 17th through 20th, 13 the obvious conclusion is that she was “unable to perform the functions of [her] position” 14 during that time. 29 U.S.C. § 2612(a)(1)(D). But the regulation speaks of a “find[ing]” by 15 the employee’s health care provider. 29 C.F.R. § 825.123(a). Flores has not submitted 16 such a finding. It appears, however, the regulation’s requirement of a medical finding is 17 referencing a different situation than what is presented here. 18 Under the FMLA, an “employer may . . . require that the employee obtain, in a 19 timely manner, a written certification by a health care provider regarding the medical 20 condition necessitating leave.” Bailey v. Sw. Gas Co., 275 F.3d 1181, 1185-86 (9th Cir. 21 2002) (citing 29 U.S.C. § 2613(a)). An employer could, of course, “take the employee at 22 his word and grant the [FMLA] request” without requiring a certification. Hansen v. 23 Fincantieri Marine Group, LLC, 763 F.3d 832, 837 (7th Cir. 2014). When an employer 24 has not required an employee produce a medical certification, the employee would have no 25 reason to seek out a “find[ing]” that she was unable to perform the functions of her position. 26 Thus, as explained by the Eighth Circuit, if an employer chooses to forgo its right to obtain 27 a medical certification, it should not be allowed to later claim there is no medical 28 certification. Thorson v. Gemini, Inc., 205 F.3d 370, 382 (8th Cir. 2000). Based on the 1 sequence of events in this case, requiring Flores now produce a medical certification 2 regarding her period of incapacity would not be appropriate. 3 On December 21st Flores informed DISH of her medical issues. In response, DISH 4 could have required Flores submit a medical certification. But DISH chose not to do so. 5 Instead, DISH terminated Flores. Thus, Flores never had any need to obtain a “find[ing]” 6 from her medical provider regarding her ability to work on December 17th or earlier. 29 7 C.F.R. § 825.123(a). Moreover, the undisputed evidence establishes Flores was unable to 8 perform her regular daily activities from December 17th through 20th. During those days 9 Flores was bedbound and able to complete only the most basic of self-care tasks. There is 10 no evidence Flores could have worked at all during those days. When the employer does 11 not request a medical certification, and there is undisputed evidence the employee was 12 incapacitated, the regulation’s requirement of a medical finding is not applicable. There is 13 no genuine dispute of material fact that Flores met the statutory requirement of being 14 “unable to perform the functions of [her] position.” This conclusion, together with Flores 15 having a “serious health condition,” means Flores has established the first element of her 16 FMLA interference claim that she was “entitled to leave under the FMLA.” Escriba v. 17 Foster Poultry Farms, Inc., 743 F.3d 1236, 1243 (9th Cir. 2014). 18 B. Sufficient Notice of Intent to Take Leave 19 The next element of Flores’ FMLA interference claim is that she provided 20 “sufficient notice of [her] intent to take leave.” Escriba v. Foster Poultry Farms, Inc., 743 21 F.3d 1236, 1243 (9th Cir. 2014). As explained in the regulation, this element requires an 22 employee “provide sufficient information for an employer to reasonably determine whether 23 the FMLA may apply to the leave request.” 29 C.F.R. § 825.303(b). Depending on the 24 facts, “such information may include that a condition renders the employee unable to 25 perform the functions of the job.” Id. But “[w]hen an employee seeks leave for the first 26 time for a FMLA–qualifying reason, the employee need not expressly assert rights under 27 the FMLA or even mention the FMLA.” Id. The regulation recognizes merely “[c]alling 28 in ‘sick’ without providing more information will not be considered sufficient notice to 1 trigger an employer’s obligations.” 29 C.F.R. § 825.303(b). But employers cannot avoid 2 liability through willful blindness. 3 The Ninth Circuit has ruled “[e]mployees need only notify their employers that they 4 will be absent under circumstances which indicate that the FMLA might apply.” Bachelder 5 v. Am. W. Airlines, Inc., 259 F.3d 1112, 1130 (9th Cir. 2001). In addition, “[i]t is the 6 employer’s responsibility to determine when FMLA leave is appropriate, to inquire as to 7 specific facts to make that determination, and to inform the employee of his or her 8 entitlements.” Xin Liu v. Amway Corp., 347 F.3d 1125, 1134 (9th Cir. 2003). When 9 assessing the adequacy of information provided by an employee, “the critical question is 10 whether the information imparted to the employer is sufficient to reasonably apprise it of 11 the employee’s request to take time off for a serious health condition.” Mora v. Chem- 12 Tronics, Inc., 16 F. Supp. 2d 1192, 1209 (S.D. Cal. 1998) (quoting Manuel v. Westlake 13 Polymers Corp., 66 F.3d 758, 764 (5th Cir. 1995)). 14 DISH’s arguments regarding the adequacy of Flores’ notice are, like so many other 15 aspects of DISH’s filings, lacking factual and legal support. There are disputes of fact 16 about many of the forms of notice Flores tries to invoke. Thus, Flores claims that in 17 November and December 2018, she had to walk very slowly, sleep on her breaks, wrap 18 herself in a blanket, and could only sit or stand slowly. No supervisory employee at DISH 19 admits to seeing this behavior, meaning there might be a dispute of fact if this were the 20 only notice at issue. Similarly, Flores claims she informed Brown that she might be having 21 kidney issues and while Brown does not recall such a conversation it is a disputed fact. 22 Again, if that were the only instance of alleged notice, trial would be necessary. But there 23 is other evidence of notice DISH cannot avoid. 24 On December 17th, Flores called the attendance line and stated: “I was sick, that I 25 was being sick, that I went to the doctor already, that they gave me medication but I still 26 have pain. . . . I was advised to go in for more tests, and possible, you know, referred to the 27 hospital.” (Doc. 49-2 at 48). An employee that informs her employer she is sick, is going 28 for tests, and might be sent to the hospital approaches sufficient notice that FMLA leave 1 might be needed. Cf. Bachelder v. Am. W. Airlines, Inc., 259 F.3d 1112, 1131 (9th Cir. 2 2001) (holding “two doctor’s notes” an employee provided were sufficient to place the 3 employer “on notice that the leave might be covered by the FMLA”). The notice to DISH’s 4 attendance line, however, is not why Flores is entitled to summary judgment on this point. 5 The crucial notice was what occurred on December 21st. 6 Flores reported to work on December 21st expecting to provide medical records to 7 DISH to explain her recent absences. Before she had a chance to do so, she was called to 8 a meeting with Brown and Angulo. After being informed she was going to be terminated 9 based on her recent absences, Flores became upset and tried to explain “some of the health 10 issues that she was dealing with.” According to Angulo, Flores stated “something along 11 the lines of being in the hospital for passing a kidney stone,” and she was “slated to go 12 back to surgery or had to go back to the hospital.” Flores attempted to offer her medical 13 records to support these statements. At that time, it is undisputed Angulo knew “what 14 [Flores] had shared at the table at the time of termination would have potentially qualified 15 for a leave.” Despite that knowledge, Brown and Angulo proceeded with the termination. 16 These facts present an obvious case of sufficient notice. When an employee provides 17 information that leads a supervisor to conclude the FMLA might be at issue, it is hard to 18 see how an employer can later claim insufficient notice. DISH, however, makes precisely 19 that argument. And that argument may be sanctionable. 20 According to DISH, “[t]he information Flores provided DISH” at the December 21 21st meeting “was substantively insufficient to reasonably put DISH on notice she suffered 22 a serious health condition.” (Doc. 57 at 6). DISH further claims “[n]o reasonable juror 23 could conclude Flores adequately notified DISH she was or would be absent under 24 circumstances indicating the FMLA might apply.” (Doc. 57 at 7). Under governing law, 25 it is unclear how DISH’s counsel could make these assertions. 26 To recap, on December 21st, Flores told Brown (her direct supervisor) and Angulo 27 (Brown’s supervisor) that she was having medical difficulties with her kidney, she was 28 planning to go in for surgery or, at the very least, to return to the hospital. Upon hearing 1 this information, Angulo concluded Flores “potentially qualified for a leave.” But DISH 2 now claims “no reasonable juror” could draw the exact conclusion Angulo drew. DISH’s 3 position appears to be based on a refusal to even acknowledge Angulo’s deposition. That 4 is, DISH does not address Angulo’s deposition testimony in making its arguments. 5 Therefore, the Court is left to conclude DISH has no explanation why Angulo’s own 6 conclusion must be ignored. But even if Angulo had not admitted she knew the FMLA 7 might be implicated, Flores’ statements at the December 21st meeting were obviously 8 sufficient notice of possible need for leave. 9 At the December 21st meeting Flores informed DISH supervisory personnel she 10 was experiencing ongoing kidney issues, those issues were causing Flores to miss work, 11 and the issues were sufficiently serious that Flores might require surgery or hospitalization. 12 That information easily qualifies as “circumstances which indicate that the FMLA might 13 apply.” Bachelder v. Am. W. Airlines, Inc., 259 F.3d 1112, 1130 (9th Cir. 2001). As a 14 matter of law, Flores provided sufficient notice prior to her termination.7 15 C. FMLA Entitlement 16 The final disputed element of Flores’ FMLA interference claim is that DISH denied 17 her FMLA benefits to which she was entitled. Escriba v. Foster Poultry Farms, Inc., 743 18 F.3d 1236, 1243 (9th Cir. 2014). There is no dispute this element is met. The relevant 19 regulation explains FMLA leave cannot “be counted under no fault attendance policies.” 20 29 C.F.R. § 825.220(c). And the Ninth Circuit has held the FMLA “protect[s] an employee 21 against disciplinary action based on her absences if those absences are taken for one of the 22 Act’s enumerated reasons.” Bachelder v. Am. W. Airlines, Inc., 259 F.3d 1112, 1125 (9th 23 Cir. 2001). 24

25 7 DISH does not argue Flores provided the information to Brown and Angulo on December 21st only after she was no longer an employee. Thus, even viewed in the light 26 most favorable to DISH, the information was provided at a time Flores was still an 27 employee. Cf. Walls v. Cent. Contra Costa Transit Auth., 653 F.3d 963, 967 (9th Cir. 2011) (holding individual who was not an employee at the time he made his request could 28 not “invoke FMLA protection”). 1 Had DISH performed its obligations under the FMLA, Flores’ absence on 2 December 17th would have been excused and would not have counted towards her point 3 total. In other words, Flores’s absence on December 17th was due to one of the FMLA’s 4 enumerated reasons and DISH could not use the absence in its termination decision. DISH 5 based its termination decision on that absence. Therefore, DISH denied Flores FMLA 6 benefits to which she was entitled. 7 D. Damages 8 Flores is entitled to summary judgment on liability regarding her FMLA 9 interference claim but she did not seek summary judgment regarding the amount of her 10 damages. The correct amount, therefore, must be determined at trial. See Farrell v. Tri- 11 Cty. Metro. Transp. Dist. of Oregon, 530 F.3d 1023, 1025 (9th Cir. 2008) (“It is well- 12 settled that the FMLA, by its terms, only provides for compensatory damages and not 13 punitive damages.”). 14 II. Remaining Claims 15 In addition to her claim for FMLA interference, Flores also has an FMLA retaliation 16 claim, a discrimination claim under the Americans with Disabilities Act, and a retaliation 17 claim under the ADA. DISH moved for summary judgment on these claims but Flores did 18 not. Viewed in the light most favorable to Flores, DISH is entitled to summary judgment 19 on the FMLA retaliation claim. DISH is not, however, entitled to summary judgment on 20 the ADA claims. The parties will be required to confer and submit a joint statement 21 indicating whether they agree the ADA claims must go to trial or if Flores now wishes to 22 seek summary judgment on those claims. 23 A. FMLA Retaliation 24 An FMLA retaliation claim operates in a more limited manner than its name implies. 25 As explained by the Ninth Circuit, the FMLA’s anti-retaliation provision does “not cover 26 visiting negative consequences on an employee simply because he has used FMLA leave. 27 Such action is, instead, covered under” a claim for FMLA interference. Bachelder v. Am. 28 W. Airlines, Inc., 259 F.3d 1112, 1124 (9th Cir. 2001). Thus, an FMLA retaliation claim 1 “applies only to employees who oppose employer practices made unlawful by FMLA.” 2 Xin Liu v. Amway Corp., 347 F.3d 1125, 1133 n.7 (9th Cir. 2003). “[F]or example, if an 3 employee complains about an employer’s refusal to comply with the statutory mandate to 4 permit FMLA leave,” and the employee then suffers an adverse action, the employee could 5 bring an FMLA retaliation claim. Pulczinski v. Trinity Structural Towers, Inc., 691 F.3d 6 996, 1006 (8th Cir. 2012). See also Browett v. City of Reno, 237 F. Supp. 3d 1040, 1046 7 (D. Nev. 2017) (FMLA retaliation claim must be premised on employer’s actions “in 8 response to complaints about unlawful practices”). 9 Here, Flores has not pointed to the protected activity she took that would be 10 cognizable under an FMLA retaliation theory. That is, Flores does not point to any 11 evidence that she opposed DISH policies that were unlawful under the FMLA. Xin Liu, 12 347 F.3d at 1133 n.7. Flores’ opposition explains that requesting FMLA leave should be 13 deemed a protected activity. (Doc. 54 at 17). That is correct but it does not help Flores for 14 purposes of her retaliation claim. Flores’ request for FMLA leave, followed by her 15 termination, supports her FMLA interference claim, not her FMLA retaliation claim. 16 Accordingly, DISH is entitled to summary judgment on the FMLA retaliation claim. 17 B. ADA Claims 18 Flores asserts “discrimination” and “retaliation” claims under the ADA. Both of 19 these claims can be analyzed using “the burden-shifting framework outlined in McDonnell 20 Douglas.” Curley v. City of N. Las Vegas, 772 F.3d 629, 632 (9th Cir. 2014). Viewed in 21 the light most favorable to Flores, the record establishes genuine disputes of fact regarding 22 both claims. 23 There are two types of ADA “discrimination” claims Flores may be pursuing. First, 24 Flores may be pursuing a “disparate treatment” claim. Second, Flores may be pursuing a 25 “failure to accommodate” claim. These two claims are “analytically distinct.” Johnson v. 26 Bd. of Trustees of Boundary Cty. Sch. Dist. No. 101, 666 F.3d 561, 567 (9th Cir. 2011); 27 Dunlap v. Liberty Nat. Prod., Inc., 878 F.3d 794, 798 (9th Cir. 2017) (same). But in 28 situations such as the present, “from a practical standpoint” they are “the same.” Humphrey 1 v. Mem’l Hosps. Ass’n, 239 F.3d 1128, 1139 (9th Cir. 2001). That similarity is because 2 DISH’s alleged failure to accommodate resulted in disparate treatment, i.e. an allegedly 3 wrongful termination. Id. While they appear to overlap, the Court will analyze them 4 separately. 5 i. ADA Disparate Treatment 6 To survive summary judgment on the disparate treatment claim using the 7 McDonnell Douglas regime, Flores must first show she was “a disabled person within the 8 meaning of the [ADA],” she was “a qualified individual with a disability,” and she 9 “suffered an adverse employment action because of [her] disability.” Hutton v. Elf 10 Atochem N. Am., Inc., 273 F.3d 884, 891 (9th Cir. 2001). If Flores makes such a showing, 11 DISH must then offer “a legitimate, nondiscriminatory . . . reason for the adverse 12 employment action.” Curley v. City of N. Las Vegas, 772 F.3d 629, 632 (9th Cir. 2014). 13 Finally, Flores would have to show the proffered reason was pretext. Id. 14 According to DISH, Flores cannot establish the very first requirement of showing 15 she was “disabled within the meaning of the ADA while employed by DISH.” (Doc. 48 at 16 9). By statute, an individual is “disabled” if she has “a physical or mental impairment that 17 substantially limits one or more major life activities.” 42 U.S.C. § 12102(1)(A). DISH 18 claims Flores’ pain did not “substantially limit a major life activity at any time prior to her 19 termination.” (Doc. 48 at 9). But as made clear earlier, and especially when viewed in the 20 light most favorable to Flores, her inability to get out of bed or prepare her own food from 21 December 17-20 would be sufficient to conclude she was substantially limited in a variety 22 of major life activities. At the very least, viewed in the light most favorable to Flores, there 23 is a dispute of fact regarding this requirement. 24 Flores’ next required showing is that she was a “qualified individual with a 25 disability.” Hutton, 273 F.3d at 891. The “ADA explicitly defines a ‘qualified individual’ 26 as ‘an individual who, with or without reasonable accommodation, can perform the 27 essential functions of the employment position that such individual holds or desires.’” 28 Anthony v. Trax Int’l Corp., 955 F.3d 1123, 1127 (9th Cir. 2020) (quoting 42 U.S.C. § 1 12111(8)). While Flores had to miss some days of work, the record viewed in the light 2 most favorable to Flores shows she could have been able to perform the essential functions 3 of her position at DISH if she had been provided accommodations, such as leave. See 42 4 U.S.C. § 12111(9) (accommodations may include “part-time or modified work 5 schedules”). 6 Flores’ final preliminary showing is that she suffered an adverse employment 7 action. It is undisputed Flores’s termination was an adverse employment action. Thus, the 8 record viewed in the light most favorable to Flores establishes she can establish her prima 9 facie case. DISH then offers Flores’ excessive absenteeism as the legitimate non- 10 discriminatory reason for her termination and argues Flores cannot establish that reason 11 was pretextual. (Doc. 48 at 12). It appears, however, DISH has misunderstood how the 12 ADA operates on this point. 13 Under Ninth Circuit law, when an employee is terminated because of absences 14 attributable to a disability, that may be a sufficient “causal link” to support liability for 15 termination “because of [the employee’s] disability.” Humphrey v. Mem’l Hosps. Ass’n, 16 239 F.3d 1128, 1140 (9th Cir. 2001). In other words, “where an employee demonstrates a 17 causal link between the disability-produced conduct and the termination, a jury must be 18 instructed that it may find that the employee was terminated on the impermissible basis of 19 her disability.” Gambini v. Total Renal Care, Inc., 486 F.3d 1087, 1093 (9th Cir. 2007). 20 See also Alamillo v. BNSF Ry. Co., 869 F.3d 916, 921 (9th Cir. 2017) (describing causal 21 link as covering situation where “absenteeism was the direct result” of the disability); Dark 22 v. Curry Cty., 451 F.3d 1078, 1084 (9th Cir. 2006) (discharging employee based on 23 “misconduct” of employee operating truck while knowing he might have seizure was not 24 “legitimate, nondiscriminatory explanation”). Viewed in the light most favorable to Flores, 25 DISH may have terminated Flores because of her “disability-produced conduct” of missing 26 work. Gambini, 486 F.3d at 1093. DISH is not entitled to summary judgment on the ADA 27 disparate treatment claim. 28 ii. ADA Failure to Accommodate 1 The prima facie elements for a failure to accommodate claim are, ostensibly, the 2 same as a disparate treatment claim. Samper v. Providence St. Vincent Med. Ctr., 675 F.3d 3 1233, 1237 (9th Cir. 2012).8 And the requirement of a legitimate nondiscriminatory reason 4 and evidence of pretext are also the same. Here, the evidence regarding the failure to 5 accommodate claim is the same as the disparate treatment claim and, therefore, DISH is 6 not entitled to summary judgment on the failure to accommodate claim. 7 iii. ADA Retaliation 8 Pursuant to the ADA’s anti-retaliation provision, “[n]o person shall discriminate 9 against any individual because such individual has opposed any act or practice made 10 unlawful by [the ADA] or because such individual made a charge, testified, assisted, or 11 participated in any manner in an investigation, proceeding, or hearing under [the ADA].” 12 42 U.S.C. § 12203(a). To establish a prima facie case under this provision, Flores must 13 point to evidence of “(1) involvement in a protected activity, (2) an adverse employment 14 action and (3) a causal link between the two.” Brown v. City of Tucson, 336 F.3d 1181, 15 1187 (9th Cir. 2003). 16 Starting with the protected activity requirement, a request for accommodations can 17 qualify as a protected activity. Coons v. Sec’y of U.S. Dep’t of Treasury, 383 F.3d 879, 18 887 (9th Cir. 2004); Pardi v. Kaiser Found. Hosps., 389 F.3d 840, 850 (9th Cir. 2004) 19 (“Pursuing one’s rights under the ADA constitutes a protected activity.”). Viewed in the 20 light most favorable to Flores, a variety of Flores’ statements in December could qualify 21 as a request for accommodations. See Schmidt v. Safeway Inc., 864 F. Supp. 991, 997 (D.

22 8 Imposing a requirement of an “adverse employment action” in a failure to accommodate claim appears questionable. Pursuant to the explicit terms of the ADA, an employer’s 23 failure to provide “reasonable accommodations” is an act of discrimination. 42 U.S.C. § 12112(b)(5)(A). Thus, an employer commits a prohibited act of discrimination when it 24 denies “an available and reasonable accommodation.” Snapp v. United Transportation Union, 889 F.3d 1088, 1095 (9th Cir. 2018). There is no additional requirement that, for 25 example, the employee be demoted or terminated. Such a requirement would be contrary to the explicit text of the ADA. See Exby-Stolley v. Bd. of Cty. Commissioners, 979 F.3d 26 784, 802 (10th Cir. 2020) (requiring an “adverse employment action” in a failure to accommodate claim “would have the effect of significantly restricting the scope of the 27 ADA’s reasonable-accommodation obligation”). The Ninth Circuit model jury instructions recognize as much by not mentioning an “adverse employment action” in 28 setting forth the elements of a failure to accommodate claim. Ninth Circuit Model Jury Instruction 12.7. 1 Or. 1994) (noting the ADA “does not require the plaintiff to speak any magic words before 2 he is subject to its protections”). For example, Flores alleges she told Brown in early 3 December of her medical condition, in mid-December Flores told the attendance line of 4 her medical condition, and Flores informed Brown and Angulo of her medical condition 5 on December 21st. Flores was terminated shortly after these statements, undoubtedly an 6 adverse employment action. And the close temporal proximity may be enough, at summary 7 judgment, to establish a causal link. 8 DISH claims its attendance policy was a legitimate non-discriminatory reason and 9 Flores cannot establish that reason was pretextual. But as with the ADA disparate 10 treatment claim, a link between the disability-produced conduct and the termination may 11 be enough to establish pretext. The parties have not addressed whether such a link is 12 sufficient. Accordingly, for present purposes, the Court need only rule that DISH has not 13 carried its burden of establishing an entitlement to judgment as a matter of law on the ADA 14 retaliation claim. The Court notes, however, that claims brought under the ADA’s anti- 15 retaliation provision “are redressable only by equitable relief” and “no jury trial is 16 available.” Alvarado v. Cajun Operating Co., 588 F.3d 1261, 1270 (9th Cir. 2009). Given 17 those limitations, it is unclear whether Flores’ ADA retaliation claim is duplicative of her 18 other claims for relief. 19 III. Defense Counsel’s Filings 20 Defense counsel’s summary judgment filings contained statements and legal 21 positions that, on their face, do not appear to have been made in good faith. In resolving 22 the summary judgment motions the Court outlined some of the troublesome statements and 23 arguments. The Court will now list those statements and arguments, as well as others. 24 These statements and legal positions may be sufficient for the imposition of sanctions under 25 Federal Rule of Civil Procedure 11, 28 U.S.C. § 1927, or both. Defense counsel will be 26 required to identify the factual or legal support establishing each statement and argument 27 was made in good faith. 28 In developing their response, defense counsel must address that by seeking || summary judgment they were representing the factual record viewed in the light most 2|| favorable to Flores supported their positions. For example, defense counsel stated □□□□□□□□ || UTI did not incapacitate her in any way.” (Doc. 48 at 6). By making this statement, counsel must have concluded the record, viewed in the light most favorable to Flores, 5 || contained no evidence Flores was incapacitated “in any way.” That unequivocal statement 6|| raises significant questions whether it can be reconciled with Flores’ deposition testimony. 7\| Moreover, defense counsel was present for Flores’ deposition, such that they must have 8 || been aware of the information contained in the deposition but made false representations 9|| despite such knowledge. 10 Accordingly, 11 IT IS ORDERED the Motion for Summary Judgment (Doc. 46) is GRANTED. 12 IT IS FURTHER ORDERED the Motion for Summary Judgment (Doc. 48) is 13 | GRANTED IN PART and DENIED IN PART. 14 IT IS FURTHER ORDERED no later than June 30, 2021, the parties shall file a 15 || joint statement setting forth whether Plaintiff should file a motion for summary judgment 16 || on the remaining claims. 17 IT IS FURTHER ORDERED no later than June 30, 2021, defense counsel shall 18 || file a statement of no more than seventeen pages establishing the good faith basis for the factual statements and arguments listed in Exhibit A to this Order. Defense counsel should || also address whether sanctions are appropriate under Federal Rule of Civil Procedure 11 || or 28 U.S.C. § 1927. No later than July 14, 2021, Plaintiff shall file a response of no more than seventeen pages. No later than July 21, 2021, defense counsel shall file a reply of no 23 || more than eleven pages. Dated this 16th day of June, 2021. —

26 CO Dyan ACN, 27 Senior United States District Judge 28

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1 EXHIBIT A 2 Possibly contrary law or factual portion 3 DISH’s Statements of record 4 Flores has no evidence supporting any of The record contains sufficient evidence her claims against DISH. (Doc. 48 at 1). supporting Flores’ claims such that Flores, 5 not DISH, is entitled to summary judgment 6 on the FMLA interference claim. Here, Flores has no evidence establishing The record contains sufficient evidence 7 an FMLA interference claim. (Doc. 48 at supporting Flores’ claims such that Flores, 8 5). not DISH, is entitled to summary judgment on the FMLA interference claim. 9 She was not entitled to take FMLA leave, The record contains sufficient evidence 10 did not provide any notice of intent to take supporting Flores’ claims such that Flores, leave, and was never denied FMLA not DISH, is entitled to summary judgment 11 benefits. (Doc. 48 at 5-6). on the FMLA interference claim. 12 Flores was not entitled to FMLA leave The limitations caused by Flores’ apparent because she did not have a serious health UTI were sufficient to qualify as a “serious 13 condition. (Doc. 48 at 6). health condition.” 14 Flores’ UTI did not incapacitate her in any Flores testified to significant limitations, way. (Doc. 48 at 6). such as being unable to get out of bed 15 without help, unable to attend work due to 16 pain, and unable to prepare her own food. (Doc. 49-2 at 38). 17 Flores concedes she was able to work and DISH does not cite a concession by Flores 18 perform regular daily activities between that she was able to “perform regular daily December 13, 2018, when her UTI was activities” during this time period. Instead, 19 diagnosed, and December 21, 208 [sic], Flores’ deposition indicates she could only 20 when she was terminated. (Doc. 48 at 6). perform basic self-care activities and “nothing else.” Flores could not prepare 21 her own food. (Doc. 47-1 at 23). 22 While she chose not to report to work DISH does not cite an admission by Flores following her doctor’s visit on December that “she was fully capable of working” on 23 17, 2018, she admits she was fully capable December 17th. of working on that day and intended to 24 report to work after her doctor’s visit. 25 (Doc. 48 at 7). Similarly, during her days off between DISH does not cite evidence Flores was 26 December 18-20, Flores was fully able to “fully able to care for herself and perform 27 care for herself and perform her regular her regular daily activities” from daily activities (SOF 27) and again December 18-20. Instead, Flores 28 reported to duty on December 21, 2018, deposition indicates she could only 1 ready and able to work her full shift. (Doc. perform basic care activities and “nothing 48 at 7). else.” (Doc. 47-1 at 23). 2 Flores even concedes she did not believe The context of this statement appears to be 3 she needed any leave. (Doc. 48 at 7). that Flores did not believe she needed leave during the time she learned of a co- 4 worker’s situation and “the time of 5 [Flores’] situation.” (Doc. 49-2 at 71). That is, prior to when Flores became ill. 6 There is no indication Flores meant she 7 believed she did not need leave at any point in December 2018. In fact, during her 8 deposition, Flores explained her claims 9 were based on not being “given the option to – to take advantage of leave.” (Doc. 47- 10 1 at 20). 11 Her UTI, while inconvenient and even The crucial introductory phase of 29 C.F.R. painful, was not a serious health condition § 825.113(d) was deleted. 12 under the FMLA. See 29 C.F.R. § 13 825.113(d) (“the common cold, the flu, ear aches, upset stomach, minor ulcers, 14 headaches other than migraine, routine 15 dental or orthodontia problems, periodontal disease, etc. are examples of 16 conditions that do not meet the definition 17 of a serious health condition and do not qualify for FMLA leave”). (Doc. 48 at 7). 18 Flores did not notify DISH, or provide At the very least, Flores provided adequate information to DISH sufficient to notice to DISH supervisors on December 19 reasonably apprise it, that FMLA leave 21st. 20 might apply to any of Flores’ absences. (Doc. 48 at 7). 21 Flores contends she had back pain DISH does not cite any admission by 22 beginning in November 2018; however, Flores that the pain “did not affect her daily she admits the pain was intermittent, living until after her termination.” Flores’ 23 admits, prior to her UTI diagnosis on deposition testimony was that the pain 24 December 13, 2018, she attributed her pain rendered her unable to leave her bed and to a pulled muscle, and admits the pain did unable to prepare her own food. (Doc. 47- 25 not affect her daily living until after her 1 at 24). 26 termination. SOF 19 and 45. The pain never affected her ability to work Flores testified the pain was too much for 27 and she never spoke to her coach Brandon her to work on December 14. (Doc. 49-2 28 Brown about it. (Doc. 48 at 7). at 38). Flores also testified that she spoke with Brown about her pain in December. 1 (49-2 at 40). 2 Flores never gave any indication to anyone At the very least, Flores provided notice to at DISH she needed or intended to use Brown and Angulo on December 21st that 3 medical leave, and never told anyone at her medical condition was serious. Flores DISH she had any medical condition for also provided limited information to 4 which she may need leave. (Doc. 48 at 7- Brown regarding kidney pain. (Doc. 49-2 5 8). at 40). The little information Flores did provide The information provided to Brown and 6 was patently insufficient to inform DISH Angulo was sufficient to lead Angulo to 7 that the leave was the result of a qualifying conclude Flores might be entitled to leave. medical condition. (Doc. 48 at 8). 8 While a UTI may be a “physical Flores testified she could not get out of bed 9 impairment,” Flores has presented no without help, had to sit slowly, and was evidence that her UTI substantially limited unable to prepare food. 10 a major life activity at any time prior to her 11 termination. (Doc. 48 at 9). Her UTI – the only condition she had prior There is no citation to a concession by 12 to of [sic] her termination – she concedes, Flores that her UTI “did not affect her 13 did not affect her ability to work, prevent ability to work.” She testified the pain on her from caring for herself, or otherwise December 14 prevent her from working. 14 substantially affect any major life activity (Doc. 49-2 at 38). 15 prior to her termination. SOF 19-28, and 45. (Doc. 48 at 9) 16 Because Flores was not substantially Flores testified she could not get out of bed 17 limited in performing any major life without help, had to sit slowly, and was activities during the relevant time period, unable to prepare food. 18 she was not disabled within the meaning of 19 the ADA. (Doc. 48 at 10) Prior to her termination, Flores had been On December 21st, Flores shared 20 diagnosed only with a UTI, which resolved information with Brown and Angulo that 21 through the use of antibiotics. SOF 21, 26 she was experiencing significant pain and 45. She had shared with no one at connected with her kidney. Angulo 22 DISH that she had a UTI. At most, she concluded, based on the information Flores shared that she had general “back pain,” provided, Flores might be entitled to leave. 23 and shared with the attendance line that she 24 was going in for “tests” because she had pain. SOF 25 and 37. Such facts were not 25 sufficient to be reasonably interpreted as a 26 disability. See Alejandro, 129 F. Supp. at 909 (“Vague or conclusory statements 27 revealing an unspecified incapacity are not 28 sufficient to put an employer on notice of 1 its obligations under the . . . ADA.”). In the absence of any knowledge of Flores’ 2 purported disability, no decision by DISH 3 could be based on or be made because of that purported disability. (Doc. 48 at 10-11 4 Here, Flores did not provide DISH any On December 21st, Flores shared 5 notice of her condition, gave no indication information with Brown and Angulo that her condition caused in any limitations for she was experiencing significant pain 6 which she needed an accommodation, and connected with her kidney. Angulo 7 never sought any accommodation. (Doc. concluded, based on the information Flores 48 at 12) provided, Flores might be entitled to leave. 8 Flores was terminated because she accrued The record contains sufficient evidence 9 the number of attendance points triggering supporting Flores’ claims such that Flores, termination under DISH’s attendance not DISH, is entitled to summary 10 policy; a legitimate, non-discriminatory judgment. 11 reason for her termination. Flores has no evidence establishing any of her claims 12 against DISH, or supporting any contention 13 that its reason for her termination was pretext. (Doc. 48 at 15) 14 DISH is entitled to summary judgment in DISH does not cite any authority 15 this matter, and an award against Flores for authorizing an award of fees in these its fees and costs. (Doc. 48 at 15). circumstances under the FMLA or ADA. 16 Assuming DISH was referencing an award 17 of fees under the ADA, such fees may be “awarded to a prevailing defendant only if 18 the plaintiff’s action was frivolous, unreasonable, or without foundation.” 19 Brown v. Lucky Stores, Inc., 246 F.3d 1182, 20 1190 (9th Cir. 2001). There was no reasonable likelihood Flores’ action would 21 qualify as “frivolous, unreasonable, or 22 without foundation.” Plaintiff has no evidence establishing the The record contains sufficient evidence 23 prima facie case for any of her claims supporting Flores’ claims such that Flores, 24 against DISH. (Doc. 57 at 1) not DISH, is entitled to summary judgment on the FMLA interference claim. 25 At the time of her termination Flores had a There is no cited authority establishing the 26 urinary tract infection (“UTI”), and nothing FMLA adopts this “diagnosis-only” else, a condition that is neither a serious approach. 27 medical condition under the FMLA nor a 28 disability under the ADA. (Doc. 57 at 1) 1 Even if her condition was a serious medical On December 21st, Flores shared condition or disability (which it was not), information with Brown and Angulo that 2 Flores did not provide enough details to she was experiencing significant pain 3 DISH for a reasonable person to recognize connected with her kidney. Angulo that she needed leave under the FMLA concluded, based on the information Flores 4 because of an inability to perform her job provided, Flores might be entitled to leave. 5 (29 U.S.C. § 2612(a)(1)(D)), or needed an accommodation under the ADA because 6 such was necessary to perform the essential 7 functions of her job. (Doc. 57 at 1) Equally clear is Flores fails to establish she Flores’ deposition established she was 8 was incapacitated “for more than three incapacitated from December 17-20. 9 consecutive, full calendar days.” (Doc. 57 at 4). 10 She provides no medical records indicating The authority DISH cites is contrary to 11 she was or needed to be off work because Marchisheck v. San Mateo County, 199 of her UTI or associated symptoms before F.3d 1068, 1071 (9th Cir. 1999). Crucially, 12 her termination. Flores’ failure to point to DISH cites Schaar v. Lehigh Valley Health 13 evidence is fatal to her FMLA claim. See Servs. Inc., 598 F.3d 156 (3rd Cir. 2010) Nagy v. W. All. Bank, No. 2:16-CV-2095 but that case explicitly notes the law is 14 JCM (GWF), 2018 U.S. Dist. LEXIS different in the Ninth Circuit. 15 104731, at *11 (D. Nev. June 22, 2018) (holding plaintiff not entitled to FMLA 16 leave where plaintiff was unable to produce 17 evidence of an inability to work for more than three calendar days); Nelson v. Fiskars 18 Brands, No. 3:14-cv-00685-SB, 2015 U.S. Dist. LEXIS 124328, at *36 (D. Or. July 19 10, 2015) (holding similarly); Carter v. 20 Rental Unif. Serv. of Culpeper, Inc., 977 F. Supp. 753, 760 (W.D. Va. 1997) (“As a 21 matter of law, an illness that incapacitates 22 an individual for only ... the two-day period the doctor advised [the employee] to take 23 off from work, is not covered by the 24 FMLA.”); see also Schaar v. Lehigh Valley Health Servs. Inc., 598 F.3d 156 (3rd Cir. 25 2010) (holding that some medical evidence 26 is necessary to show that the incapacitation was “due to” the serious health condition.); 27 Culpepper v. BlueCross BlueShield of 28 Tenn., 321 Fed. Appx. 491, 496–97 (6th Cir. 2009) (holding that the plaintiff's “own 1 subjective testimony that she was too sore from surgery to work” could not establish 2 her absences were covered by the FMLA); 3 Caskey v. Colgate–Palmolive Co., 535 F.3d 585, 591 (7th Cir.2008) (holding that 4 some medical evidence is necessary to 5 establish a serious health condition); Frazier v. Iowa Beef Processors, Inc., 200 6 F.3d 1190, 1194-95 (8th Cir. 2000) 7 (affirming judgment as a matter of law against an employee who provided no 8 medical evidence showing he was 9 incapacitated for more than three days). (Doc. 57 at 4). 10 Second, Flores’ FMLA interference claim On December 21st, Flores shared 11 fails because she did not notify DISH she information with Brown and Angulo that was or would be absent “under she was experiencing significant pain 12 circumstances which indicate the FMLA connected with her kidney. Angulo 13 might apply.” Bachelder, 259 F.3d at 1130. concluded, based on the information Flores To survive summary judgment, Flores provided, Flores might be entitled to leave. 14 must prove she provided information 15 sufficient to reasonably apprise DISH that her absences were due to a serious health 16 condition. See Marquez v. Glendale Union High Sch. Dist., No. CV-16-03351-PHX- 17 JAT, 2018 U.S. Dist. LEXIS 173343, at 18 *71-72 (D. Ariz. Oct. 9, 2018) (“When an employee requests leave under the FMLA, 19 the employer must be made aware that the 20 absence is due to a serious illness so that the employer can distinguish it from 21 ordinary sick-days.”). To be sufficient 22 under the FMLA, the notice must be substantively adequate, timely, and 23 consistent with the employer’s proscribed 24 procedure. See 29 C.F.R. §§ 825.302 and 303. Flores’ notice failed in all three 25 respects. (Doc. 57 at 5) 26 Further, her presentation of medical On December 21st, Flores shared records during her termination meeting did information with Brown and Angulo that 27 not substantively change the information she was experiencing significant pain 28 DISH had. (Doc. 57 at 6) connected with her kidney. Angulo concluded, based on the information Flores 1 provided, Flores might be entitled to leave. 2 The information Flores provided DISH, On December 21st, Flores shared even with the benefit of the records, was information with Brown and Angulo that 3 substantively insufficient to reasonably put she was experiencing significant pain DISH on notice she suffered a serious connected with her kidney. Angulo 4 health condition. (Doc. 57 at 6). concluded, based on the information Flores 5 provided, Flores might be entitled to leave. Finally, even if the information Flores There is no cited authority establishing the 6 provided to DISH triggered its obligation FMLA adopts this “diagnosis-only” 7 to inquire further (which it did not), Flores approach. would nevertheless have been terminated 8 because her UTI was not a serious health 9 condition under the FMLA. (Doc. 57 at 8) Flores’ ADA claims are based on the faulty On December 21st, Flores shared 10 premise that Flores’ alleged disability or information with Brown and Angulo that 11 supposed need for accommodation were she was experiencing significant pain known to DISH. Even if she was disabled connected with her kidney. Angulo 12 and needed an accommodation, which concluded, based on the information Flores 13 DISH contests as set forth in its Motion provided, Flores might be entitled to leave. (Doc. 48), Flores has not established that 14 DISH knew when it terminated her 15 employment on December 21, 2018, she was disabled or about any limitations her 16 alleged disability purportedly caused. 17 (Doc. 57 at 8). The only thing DISH knew when it On December 21st, Flores shared 18 terminated Flores was that she had been information with Brown and Angulo that 19 absent for two non-consecutive days, and, she was experiencing significant pain to the extent any condition limited her, that connected with her kidney. Angulo 20 condition had not affected her ability to concluded, based on the information Flores perform her job and Flores did not share provided, Flores might be entitled to leave. 21 how it affected her outside of work. Flores 22 did not tell her supervisor or human resources any information from which a 23 reasonable person could conclude she was 24 disabled or in need of an accommodation. Nothing she shared during her termination 25 process altered that knowledge other than 26 putting a name to a condition – a urinary tract infection. No reasonable employer 27 would conclude that two non-consecutive 28 absences – even if related - meant that Flores was disabled or that she needed any 1 accommodation to perform her job. To the contrary, the known facts indicated Flores 2 could fully perform her job, did perform 3 her job, and was ready, willing, and able to continue doing so at the time of her 4 termination. Doc. 49, SOF 19-28. Flores 5 simply cannot establish that DISH knew of any alleged disability, or that, based on the 6 limited information DISH had, Flores 7 might need an accommodation. (Doc. 57 at 9). 8 Flores did not have a serious health On December 21st, Flores shared 9 condition during her DISH employment, information with Brown and Angulo that and nothing in the information Flores she was experiencing significant pain 10 shared with DISH about any condition she connected with her kidney. Angulo 11 did have during her employment concluded, based on the information Flores reasonably indicated that any of her provided, Flores might be entitled to leave. 12 absences were or should have been covered 13 by the FMLA. (Doc. 52 at 1) Flores’ self-serving testimony, standing The authority DISH cites is contrary to 14 alone, is insufficient to prove incapacity Marchisheck v. San Mateo County, 199 15 under the FMLA. See Nagy, 2018 U.S. F.3d 1068, 1071 (9th Cir. 1999). Crucially, Dist. LEXIS 104731, at *11 DISH cites Schaar v. Lehigh Valley Health 16 (uncorroborated self-serving testimony not Servs. Inc., 598 F.3d 156 (3rd Cir. 2010) 17 enough to establish inability to work for but that case explicitly notes the law is more than three calendar days); Nelson v. different in the Ninth Circuit. 18 Fiskars Brands, No. 3:14-cv-00685-SB, 2015 U.S. Dist. LEXIS 124328, at *22-23 19 (D. Or. July 10, 2015); see also Schaar v. 20 Lehigh Valley Health Servs. Inc., 598 F.3d 156 (3rd Cir. 2010) (holding that some 21 medical evidence is necessary to show that 22 the incapacitation was “due to” the serious health condition.); Culpepper v. BlueCross 23 BlueShield of Tenn., 321 Fed.Appx. 491, 24 496–97 (6th Cir. 2009) (holding that the plaintiff's “own subjective testimony that 25 she was too sore from surgery to work” was 26 insufficient to establish that her absences were covered by the FMLA where her 27 medical certification stated that she would 28 need to be absent from work for two episodes of incapacity lasting three days 1 each); Caskey v. Colgate–Palmolive Co., 535 F.3d 585, 591 (7th Cir.2008) (holding 2 that some medical evidence is necessary to 3 establish a serious health condition ); Frazier v. Iowa Beef Processors, Inc., 200 4 F.3d 1190, 1194-95 (8th Cir. 2000) 5 (affirming judgment as a matter of law against employee who provided no medical 6 evidence showing that he was 7 incapacitated for more than three days). (Doc. 52 at 4) 8 Flores’ repeated attempt to cast her two There is no cited authority that a diagnosis 9 pre-termination absences as occurring “in at a particular point in time must control. the midst of obtaining a life-changing and In particular, there is no authority 10 critical diagnosis,” Flores’ Motion at 2, is establishing Flores’ approach is “farcical.” 11 farcical. Flores had a UTI – which resolved after a course of antibiotics. Doc. 53, CSOF 12 58, 60, 68, and 69. After her termination, 13 she developed a cyst and was hospitalized for an infection. Doc. 53, CSOF, 68-71. 14 Medical conditions and hospitalizations 15 that occurred after her termination do not retroactively bring her December 14 and 17 16 absences within FMLA coverage. (Doc. 52 at 5) 17 Flores’ FMLA interference claim also fails On December 21st, Flores shared 18 because she did not notify DISH that she information with Brown and Angulo that was or would be absent “under she was experiencing significant pain 19 circumstances which indicate the FMLA connected with her kidney. Angulo 20 might apply.” (Doc. 52 at 6) concluded, based on the information Flores provided, Flores might be entitled to leave. 21 The information Flores provided DISH is On December 21st, Flores shared 22 far from the “abundant, repetitive, and information with Brown and Angulo that fulsome” notice Flores claims. See Motion she was experiencing significant pain 23 at 8. Rather, as Flores concedes, the only connected with her kidney. Angulo 24 information Flores conveyed to DISH was concluded, based on the information Flores that she was “ill,” “sick,” had “pain,” and provided, Flores might be entitled to leave. 25 had been or was going to the doctor. See 26 Motion at 9. Such vague references and generalized descriptions are insufficient as 27 a matter of law. (Doc. 52 at 6) 28 DISH knew only that Flores was absent On December 21st, Flores shared from work for two non-consecutive days – information with Brown and Angulo that 1 with no information reasonably adequate to she was experiencing significant pain indicate the absences were because of any connected with her kidney. Angulo 2 illness or condition that might be covered concluded, based on the information Flores 3 by the FMLA. (Doc. 52 at 7). provided, Flores might be entitled to leave. Flores makes much of her providing copies On December 21st, Flores shared 4 of her doctor’s records evidencing her UTI information with Brown and Angulo that 5 diagnosis at her termination meeting on she was experiencing significant pain December 21, 2018. However, nothing in connected with her kidney. Angulo 6 those records supports her contention that concluded, based on the information Flores 7 her UTI was a serious medical condition, provided, Flores might be entitled to leave. or that she had been incapacitated for more 8 than three days. The records do not explain 9 why she was absent, do not indicate her UTI necessitated she be off work, and do 10 not indicate she had been or would be 11 unable to work or care for herself for more than three days because of her UTI. The 12 records were insufficient to reasonably put 13 DISH on notice that she suffered a serious health condition. (Doc. 52 at 8) 14 No reasonable juror could conclude Flores On December 21st, Flores shared 15 adequately notified DISH that she was or information with Brown and Angulo that would be absent under circumstances she was experiencing significant pain 16 indicating the FMLA might apply. (Doc. connected with her kidney. Angulo 17 52 at 8) concluded, based on the information Flores provided, Flores might be entitled to leave. 18 Flores’ Motion should be denied because This includes a “diagnosis only” approach she fails to establish a prima facie case of without citation to authority adopting such 19 FMLA interference. During her an approach. This also ignores Flores’ 20 employment with DISH, Flores’ only deposition testimony that she was medical condition was a UTI, which is not incapacitated from December 17-20. And 21 a serious health condition under the FMLA. this ignores the information conveyed on 22 Flores presents no evidence that she was December 21st which was sufficient for incapacitated for more than three full Angulo to conclude Flores might be 23 calendar days and the only evidence that entitled to leave. 24 she was incapacitated at all during her employment is her self-serving declaration 25 – which is unsupported and conflicts with 26 her deposition testimony. Flores also fails to establish that she gave DISH adequate 27 notice under the FMLA that either her 28 December 14 or December 17 absences were or may have been covered by the 1 FMLA. The only information Flores provided was vague generalities. No 2 reasonable juror could conclude that the 3 information Flores provided DISH was adequate notice under the FMLA. (Doc. 52 4 at 13) 5 Plaintiff has no evidence establishing the This includes a “diagnosis only” approach prima facie case for any of her claims without citation to authority adopting such 6 against DISH. At the time of her an approach. This also ignores Flores’ 7 termination Flores had a urinary tract deposition testimony that she was infection (“UTI”), and nothing else, a incapacitated from December 17-20. And 8 condition that is neither a serious medical this ignores the information conveyed on 9 condition under the FMLA nor a disability December 21st which was sufficient for under the ADA. Even if her condition was Angulo to conclude Flores might be 10 a serious medical condition or disability entitled to leave. 11 (which it was not), Flores did not provide enough details to DISH for a reasonable 12 person to recognize that she needed leave 13 under the FMLA because of an inability to perform her job (29 U.S.C. § 14 2612(a)(1)(D)), or needed an 15 accommodation under the ADA because such was necessary to perform the essential 16 functions of her job. (42 U.S.C. § 12111(8- 9); 29 C.F.R. §1630.1 (m)-(o)). (Doc. 57 at 17 1). 18 Whatever symptoms Flores may have had, DISH does not cite any evidence that those symptoms did not affect her ability to Flores’ pain “did not affect her ability to 19 work, never bothered her enough that she care for herself until after her termination.” 20 felt like she needed to talk to her supervisor Flores’ deposition testimony was that the about it; and did not affect her ability to pain rendered her unable to leave her bed 21 care for herself until after her termination. and unable to prepare her own food. (Doc. 22 (Doc. 57 at 2). 47-1 at 24). Flores’ failure to point to evidence is fatal The authority DISH cites is contrary to 23 to her FMLA claim. See Nagy v. W. All. Marchisheck v. San Mateo County, 199 24 Bank, No. 2:16-CV-2095 JCM (GWF), F.3d 1068, 1071 (9th Cir. 1999). Crucially, 2018 U.S. Dist. LEXIS 104731, at *11 (D. DISH cites Schaar v. Lehigh Valley Health 25 Nev. June 22, 2018) (holding plaintiff not Servs. Inc., 598 F.3d 156 (3rd Cir. 2010) 26 entitled to FMLA leave where plaintiff was but that case explicitly notes the law is unable to produce evidence of an inability different in the Ninth Circuit. 27 to work for more than three calendar days); 28 Nelson v. Fiskars Brands, No. 3:14-cv- 00685-SB, 2015 U.S. Dist. LEXIS 124328, 1 at *36 (D. Or. July 10, 2015) (holding similarly); Carter v. Rental Unif. Serv. of 2 Culpeper, Inc., 977 F. Supp. 753, 760 3 (W.D. Va. 1997) (“As a matter of law, an illness that incapacitates an individual for 4 only ... the two-day period the doctor 5 advised [the employee] to take off from work, is not covered by the FMLA.”); see 6 also Schaar v. Lehigh Valley Health Servs. 7 Inc., 598 F.3d 156 (3rd Cir. 2010) (holding that some medical evidence is necessary to 8 show that the incapacitation was “due to” 9 the serious health condition.); Culpepper v. BlueCross BlueShield of Tenn., 321 Fed. 10 Appx. 491, 496–97 (6th Cir. 2009) 11 (holding that the plaintiff’s “own subjective testimony that she was too sore 12 from surgery to work” could not establish 13 her absences were covered by the FMLA); Caskey v. Colgate–Palmolive Co., 535 14 F.3d 585, 591 (7th Cir.2008) (holding that 15 some medical evidence is necessary to establish a serious health condition); 16 Frazier v. Iowa Beef Processors, Inc., 200 F.3d 1190, 1194-95 (8th Cir. 2000) 17 (affirming judgment as a matter of law 18 against an employee who provided no medical evidence showing he was 19 incapacitated for more than three days). 20 (Doc. 57 at 4-5). Second, Flores’ FMLA interference claim On December 21st, Flores shared 21 fails because she did not notify DISH she information with Brown and Angulo that 22 was or would be absent “under she was experiencing significant pain circumstances which indicate the FMLA connected with her kidney. Angulo 23 might apply.” (Doc. 57 at 5). concluded, based on the information Flores 24 provided, Flores might be entitled to leave. Further, her presentation of medical On December 21st, Flores shared 25 records during her termination meeting did information with Brown and Angulo that 26 not substantively change the information she was experiencing significant pain DISH had. The records do not explain why connected with her kidney. Angulo 27 Flores was absent, do not indicate her UTI concluded, based on the information Flores 28 necessitated she be off work at any time, provided, Flores might be entitled to leave. and do not indicate she could not work or 1 care for herself for more than three days because of her condition. See Doc. 49-3, 2 Exhibits F and G. The information Flores 3 provided DISH, even with the benefit of the records, was substantively insufficient 4 to reasonably put DISH on notice she 5 suffered a serious health condition. (Doc. 57 at 6). 6 Finally, even if the information Flores This includes a “diagnosis only” approach 7 provided to DISH triggered its obligation without citation to authority adopting such to inquire further (which it did not), Flores an approach. This also ignores Flores’ 8 would nevertheless have been terminated deposition testimony that she was 9 because her UTI was not a serious health incapacitated from December 17-20. And condition under the FMLA. (Doc. 57 at 8). this ignores the information conveyed on 10 December 21st which was sufficient for 11 Angulo to conclude Flores might be entitled to leave. 12 Even if she was disabled and needed an On December 21st, Flores shared 13 accommodation, which DISH contests as information with Brown and Angulo that set forth in its Motion (Doc. 48), Flores has she was experiencing significant pain 14 not established that DISH knew when it connected with her kidney. Angulo 15 terminated her employment on December concluded, based on the information Flores 21, 2018, she was disabled or about any provided, Flores might be entitled to leave. 16 limitations her alleged disability 17 purportedly caused. (Doc. 57 at 8). Flores did not tell her supervisor or human On December 21st, Flores shared 18 resources any information from which a information with Brown and Angulo that reasonable person could conclude she was she was experiencing significant pain 19 disabled or in need of an accommodation. connected with her kidney. Angulo 20 (Doc. 57 at 9). concluded, based on the information Flores provided, Flores might be entitled to leave. 21

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