Marchisheck v. San Mateo County

199 F.3d 1068, 99 Daily Journal DAR 12631, 99 Cal. Daily Op. Serv. 9803, 24 Employee Benefits Cas. (BNA) 1320, 1999 U.S. App. LEXIS 32492, 77 Empl. Prac. Dec. (CCH) 46,209, 1999 WL 1188978
CourtCourt of Appeals for the Ninth Circuit
DecidedDecember 16, 1999
DocketNo. 98-16141
StatusPublished
Cited by48 cases

This text of 199 F.3d 1068 (Marchisheck v. San Mateo County) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Marchisheck v. San Mateo County, 199 F.3d 1068, 99 Daily Journal DAR 12631, 99 Cal. Daily Op. Serv. 9803, 24 Employee Benefits Cas. (BNA) 1320, 1999 U.S. App. LEXIS 32492, 77 Empl. Prac. Dec. (CCH) 46,209, 1999 WL 1188978 (9th Cir. 1999).

Opinion

GRABER, Circuit Judge:

This appeal arises under the Family and Medical Leave Act of 1993 (FMLA), 29 U.S.C. §§ 2601-2654, and the California Family Rights Act (CFRA), Cal. Gov’t Code §§ 12945.1 to .2, 19702.3. Plaintiff Fe Castro Marchisheck contends that defendant San Mateo County violated those statutes when it terminated her employment after she took a one-month unauthorized leave from work to move her teenage son to the Philippines. The district court granted Defendant’s motion for summary judgment. On de novo review, see Margolis v. Ryan, 140 F.3d 850, 852 (9th Cir.1998), we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

We view the facts in the light most favorable to Plaintiff, the nonmoving party. See id. Plaintiff was employed as a senior medical technologist in the San Mateo County General Hospital. She has a son, Shaun. At the time of the key events in this case, Shaun was 14 years old. Plaintiff was raising him alone.

Shaun had received counseling beginning in 1991. Following a 1991 arrest for shoplifting, Shaun was counseled by Dr. Rath at Project Focys. Dr. Rath concluded that Shaun, then 10, was mildly depressed and had poor peer relations. Shaun received counseling at Kaiser in 1994. He had 10 counseling sessions in 1995 with Mariana Pavolotsky, an intern at Project Focys. Plaintiff, who was concerned about Shaun’s grades and choice of friends, initiated those sessions. After the final session, on June 1, 1995, Pavolotsky did not refer Shaun for continued therapy. Her records from their sessions do not contain any diagnosis of a mental disorder, though they do reflect her concern with Shaun’s behavioral problems. Dr. Rath, who was Pavolotsky’s supervisor, stated in [1071]*1071a deposition that he did not recollect “having a big serious concern at that point” about Shaun’s behavior and also stated that, if Pavolotsky “felt like there was something gravely needing attention, then there would have been probably significant attempts to try to get him to continue in therapy.”

Shaun also attended six counseling sessions with Jerry Lawler at Kaiser between June 2 and August 9, 1995. Lawler was a “psychological assistant” in the drug and alcohol abuse program at Kaiser. Plaintiff brought Shaun to Kaiser because she was concerned that he was abusing alcohol and drugs. Lawler came to a “provisional” conclusion during counseling that Plaintiffs concerns were unfounded. He diagnosed Shaun with a “parent-child relationship problem” but “ruled out” diagnoses of attention deficit disorder and post-traumatic stress disorder.

On the night of August 5, 1995, Shaun was assaulted by several acquaintances. Plaintiff took Shaun to the emergency room when she arrived home from work on August 6. The emergency room report states that Shaun lost consciousness during the attack and suffered a nasal contusion, two puncture burns on his back, abrasions, erythema on the right side of his neck, and a left lateral subconjunctival hemorrhage. The report also states that Shaun was “alert and oriented” and “feel[ing] remarkably well.” He was sent home with instructions to apply ice to his nose, clean his wounds with soap and water, and return to the emergency room if his wounds became more red, swollen, or tender or if he developed a fever. The report does not recommend any restriction of Shaun’s activities.

Concerned for Shaun’s safety, Plaintiff took him to stay with his sister. Shaun stayed with his sister from August 7 to 17. According to his sister, Shaun was “lethargic,” “jittery,” and “in an obvious state of fear,” and he “mostly laid on the couch” and did not shower or bathe.

On August 9, Shaun attended a previously scheduled counseling session with Lawler at Kaiser. Lawler noticed that Shaun had a black eye and asked him what happened. According to Lawler, Shaun “said T got into a ruckus’ or something like that with somebody, but clearly he wanted it to be no big deal.” Lawler stated that Shaun did not tell him of any physical problems from the assault, other than the black eye, that Lawler observed no such problems, and that Shaun expressed no fear for his safety but, “on the contrary,” “minimized it.”

Immediately after Shaun was assaulted, Plaintiff conceived a plan to move Shaun to the Philippines to live with her brother. Plaintiff was born in the Philippines; Shaun was not, although he had visited there. On August 10, Plaintiff made a written request for approximately five weeks of vacation leave, to begin on August 18. A supervisor, George Ford, denied the request, because he could not cover the shifts that Plaintiff would miss without authorizing overtime. Plaintiffs written request does not specify the reason for the vacation, but Plaintiff asserts that, when Ford denied her request, she told him that she had to go to the Philippines because of an “emergency” involving Shaun. That “emergency” was her fear for Shaun’s safety; Plaintiff feared that if she left Shaun alone, he would be beaten or killed, and she believed that he would be safe from “getting beaten up again” if he moved to her brother’s house in the Philippines.

Plaintiff had further discussions about her travel plans over the next week. Apparently Plaintiff already had bought airplane tickets, or was in the process of buying tickets, when she requested vacation leave on August 10. She spoke with another supervisor, Elaine Phelps, on August 11. Phelps, who had heard that Plaintiff already had tickets, warned Plaintiff not to leave without approval. On August 16, Ford left a message on Plain[1072]*1072tiffs answering machine, reminding her that her request had been denied.

On August 17, the day on which she was scheduled to leave for the Philippines, Plaintiff met with Ford, Phelps, and Lola Thompson, the Assistant Administrator of the hospital, to discuss her vacation request. That morning, before the meeting, she called Kaiser in the hope of obtaining a letter from a doctor supporting her request for leave. Plaintiff spoke to a psychiatrist, Dr. Solomon. Plaintiff had not met Solomon, and Solomon had not been involved in any way in Shaun’s counseling. Plaintiff approached him as follows: “I said [to] Dr. Solomon, I said, T have a son, Shaun Marchisheck, that Dr. Lawler had seen, and I would like to take my son to the Philippines, to look for a school and, you know, look for a school and housing facilities.’ So I said ‘If you could kind of help me out because I am having a hard time getting time off.’ ”

Solomon, whose practice focused on adult patients and who had limited experience treating adolescents, consulted Shaun’s chart and agreed to write a letter. In his deposition, Solomon displayed almost no recollection of his contact with Plaintiff. He apparently spoke briefly with two doctors who had been involved with Shaun, but stated that he had little “participation” in their conversation about Shaun. He believed at the time that Plaintiff intended to stay in the Philippines with Shaun. In any event, he dictated the following letter for Plaintiff:

Fe Marchisheck’s son Shawn [sic] is under treatment here in our department, and at this point it is necessary for his continued treatment for him to move back to the Philippines for a time. It is also necessary for his mother to accompany him to arrange housing, schooling, etc.

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Bluebook (online)
199 F.3d 1068, 99 Daily Journal DAR 12631, 99 Cal. Daily Op. Serv. 9803, 24 Employee Benefits Cas. (BNA) 1320, 1999 U.S. App. LEXIS 32492, 77 Empl. Prac. Dec. (CCH) 46,209, 1999 WL 1188978, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marchisheck-v-san-mateo-county-ca9-1999.