Kerry Walls v. Central Contra Costa Transit A

Filing

FILED PER CURIAM OPINION (BETTY BINNS FLETCHER, SIDNEY R. THOMAS and LEE H. ROSENTHAL) AFFIRMED IN PART, REVERSED AND REMANDED IN PART. FILED AND ENTERED JUDGMENT. [7841714]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT



KERRY WALLS,
Plaintiff-Appellant,
v.
CENTRAL CONTRA COSTA TRANSIT
AUTHORITY,
Defendant-Appellee.




No. 10-15967
D.C. No.
4:08-cv-00224-PJH
OPINION

Appeal from the United States District Court
for the Northern District of California
Phyllis J. Hamilton, District Judge, Presiding
Argued and Submitted
May 13, 2011—San Francisco, California
Filed August 3, 2011
Before: Betty B. Fletcher and Sidney R. Thomas,
Circuit Judges, and Lee H. Rosenthal, District Judge.*
Per Curiam Opinion

*The Honorable Lee H. Rosenthal, District Judge for the U.S. District
Court for Southern Texas, Houston, sitting by designation.

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COUNSEL
William James Flynn, Benjamin Kerl Lunch, Neyhart, Anderson, Flynn & Grosboll, San Francisco, California, for the
plaintiff-appellant.
Mark Gabel, Patrick McPike Glenn, Molly Anne Lee, Hanson
Bridgett LLP, San Francisco, California, for the defendantappellee.

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OPINION
PER CURIAM:
Plaintiff-Appellant Kerry Walls (“Walls”) appeals the district court’s grant of summary judgment in favor of
Defendant-Appellee Central Contra Costa Transit Authority
(“CCCTA”). Walls is a former bus driver for CCCTA. After
being terminated on January 27, 2006, Walls was reinstated
on March 2, 2006 pursuant to an agreement executed over the
course of a grievance process between Walls, his union representative, and CCCTA (“Last Chance Agreement” or “Agreement”). On March 3, 2006, Walls incurred an unexcused
absence that violated the attendance requirements of the
Agreement. As a result, CCCTA again terminated Walls on
March 6, 2006.
After grieving his termination, Walls brought this suit,
claiming that his March 6 discharge violated the Family Medical Leave Act (“FMLA”) and his due process right to a pretermination hearing under the United States and California
Constitutions. The parties filed cross-motions for summary
judgment. The district court granted summary judgment in
favor of CCCTA on both claims, reasoning that Walls was not
an employee eligible for FMLA benefits when he requested
leave, and that he had waived his due process rights. Walls
timely appealed. Additional facts are noted where relevant.
We have jurisdiction under 28 U.S.C. § 1291, and we
affirm in part and reverse and remand in part.
I.
A district court’s grant of summary judgment is reviewed
de novo. Davis v. City of Las Vegas, 478 F.3d 1048, 1053 (9th
Cir. 2007) (citing Buono v. Norton, 371 F.3d 543, 545 (9th
Cir. 2004)). Federal Rule of Civil Procedure 56(a) provides
that a movant is entitled to summary judgment where “there

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is no genuine dispute as to any material fact and the movant
is entitled to a judgment as a matter of law.” In evaluating the
evidence to determine whether there is a genuine issue of fact,
we draw all inferences supported by the evidence in favor of
the non-moving party. Guidroz-Brault v. Mo. Pac. R.R. Co.,
254 F.3d 825, 829 (9th Cir. 2001).
II.
A.
[1] The FMLA entitles an “eligible employee” to twelve
workweeks of leave for certain family and health-related situations. 29 U.S.C. § 2612. “The term ‘eligible employee’
means an employee who has been employed (i) for at least 12
months by the employer with respect to whom leave is
requested . . . .” Sullivan v. Dollar Tree Stores, Inc., 623 F.3d
770, 780 (9th Cir. 2010) (citing 29 U.S.C. § 2611(2)(A))
(internal quotation marks omitted). Therefore, FMLA rights
and benefits are contingent upon the existence of an employment relationship. See Smith v. BellSouth Telecomm., Inc.,
273 F.3d 1303, 1311 (11th Cir. 2001) (the right to FMLA
leave “obviously cannot be exercised after the termination of
an employment relationship”).
[2] In order to establish an FMLA violation, the employee
must demonstrate that the employer received sufficient notice
of an employee’s intent to take FMLA leave. See Sanders v.
City of Newport, ___ F.3d ___, 2011 WL 905998, at *5 (9th
Cir. Mar. 17, 2011). An employer that refuses to reinstate an
employee who takes FMLA-protected leave unlawfully interferes with the employee’s FMLA rights. See id. at *4-5.
Walls argues that his termination on March 6, based upon
his March 3 absence, interfered with his FMLA rights because
he was entitled to protected leave on the basis of a verbal
request he made during a March 1, 2006 meeting with his
union representative and CCCTA. Although the parties pro-

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vide different accounts of Walls’s communication with
CCCTA at the March 1 meeting, they agree for purposes of
summary judgment, that, at this meeting, Walls verbally
requested to be absent from work until April 10. They also
agree that Walls was not reinstated to his position until March
2, when he signed and executed the Last Chance Agreement.
Therefore, he had not yet been reinstated to employment
when he made his request for leave.
[3] Walls argues, however, that the Last Chance Agreement retroactively changed his status and rendered him an
FMLA eligible employee on March 1. While Walls makes a
novel legal argument, the facts of this case, and the terms of
the Last Chance Agreement, do not support his position. As
an undisputed matter of fact, Walls was no longer employed
at CCCTA on March 1, the day he requested medical leave.
The Last Chance Agreement says nothing of, and does nothing to change, Walls’s status on this date. The Agreement
states only that the period from January 20, 2006 to January
27, 2006 would be changed to an unpaid suspension; it does
not expressly revoke the fact of Walls’s termination on January 27. That Walls was reinstated to his previous level of
seniority also does not change the fact that he was not
employed at CCCTA on March 1, the day before his reinstatement. Therefore, we have no basis on which to conclude that
the Agreement altered Walls’s status on March 1 for purposes
of the FMLA.
[4] Accordingly, even if a reinstatement agreement could,
as a legal matter, retroactively change a former employee’s
status from terminated to “eligible employee” for purposes of
the FMLA,1 the terms of this Last Chance Agreement clearly
do not have such effect. We agree with the district court that
Walls was not an employee of CCCTA when he made his
1

This novel question may have presented itself if, for example, the
Agreement had indicated that the entire period from Walls’s January termination to his March reinstatement was changed to an unpaid suspension.

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request for leave and, therefore, cannot invoke FMLA protection on the basis of this request.
Walls additionally argues that, even if he was not an
employee of CCCTA on March 1, CCCTA had actual knowledge during the period of Walls’s employment from March 2
to March 6 of his need for FMLA leave, thereby excusing the
requirement that he request such leave. Putting aside any legal
deficiencies in this argument, we must reject its factual premise. The record reveals that, by making the informed decision
to sign the Last Chance Agreement, Walls signaled to
CCCTA that he was ready to start work under the terms of the
Agreement, thereby retracting his request for leave. In addition, Walls attended a refresher training course on March 2,
as he was required to do under the terms of the Agreement.
This further indicated that he was in fact able to return to
work. Upon Walls’s reinstatement, therefore, CCCTA had no
notice that Walls needed or intended to take medical leave.
[5] Because Walls was not an employee of CCCTA when
he made his request for leave, we affirm the district court’s
grant of judgment for CCCTA on Walls’s FMLA claim.
B.
Walls also seeks relief under 42 U.S.C. § 1983 and the California Constitution, arguing that CCCTA denied him his
right to due process by failing to give him a hearing before
terminating him on March 6. Due process analysis involves a
two-step process. We must determine first whether Walls had
a protected property interest in his continued employment,
and, second, whether Walls received all the process that was
due. Clements v. Airport Auth. of Washoe Cnty, 69 F.3d 321,
331 (9th Cir. 1995).
1.
[6] Public employees who may be dismissed only for cause
possess a property interest in their continued employment.

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Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538-39
(1985). CCCTA argues that the Last Chance Agreement
effectively rendered Walls an at-will employee who was no
longer entitled to due process protections.
[7] In California, at-will employees are those who can be
fired with or without cause, subject only to limits imposed by
public policy. Foley v. Interactive Data Corp., 47 Cal. 3d 654,
665 (Cal. 1988). Here, the Last Chance Agreement specifies
that certain events must in fact occur in order for Walls to be
terminated. Nowhere does the Agreement expressly state that
Walls was relegated to at-will employment status, nor does it
allow CCCTA to terminate him without any cause. While the
Last Chance Agreement specifies and modifies what constitutes “just cause” for purposes of Walls’s termination, it does
not otherwise alter the employment terms of Walls’s collective bargaining agreement with CCCTA. Accordingly, there
is no basis on which to conclude that he had become an atwill employee. Under the Agreement, Walls remained a public employee who could be fired only for cause, that is, an
employee with a property interest in his continued employment. See Loudermill, 470 U.S. at 538-39.
[8] Having established that Walls had a protected property
interest, we examine the process to which he was entitled.
Due process requires that any deprivation of life, liberty, or
property “be preceded by notice and opportunity for hearing
appropriate to the nature of the case.” Mullane v. Central
Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950). As the
Loudermill Court explained, in cases of discharge from
employment, “the only meaningful opportunity to invoke the
discretion of the decisionmaker is likely to be before the termination takes effect.” Loudermill, 470 U.S. at 543. Therefore, a public employee with a property interest in his
continued employment must be provided with “oral or written
notice of the charges against him, an explanation of the
employer’s evidence, and an opportunity to present his side of
the story.” Id. at 546. While the pre-termination hearing need

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not be elaborate, the root of this requirement is that an individual have the opportunity to be heard before he is deprived
of his property interest. Id. at 542.
[9] California law similarly recognizes a public employee’s right to a pre-termination hearing. In Skelly v. State Pers.
Bd., 15 Cal. 3d 194, 215 (Cal. 1975), the Supreme Court of
California held that “due process does mandate that the
employee be accorded certain procedural rights before” being
removed. At a minimum, these pre-removal safeguards must
include “notice of the proposed action, the reasons therefor,
a copy of the charges and materials upon which the action is
based, and the right to respond, either orally or in writing, to
the authority initially imposing discipline.” Id.; see also Jones
v. Omnitrans, 125 Cal. App. 4th 273, 279-80 (Cal. Ct. App.
2004). Skelly expressly notes that post-removal safeguards
alone do not satisfy due process requirements because they
“do nothing to protect the employee who is wrongfully disciplined against the temporary deprivation of property to which
he is subjected pending a hearing.” 15 Cal. 3d at 215.
[10] It is undisputed that Walls did not receive a hearing
before his termination on March 6. Notably, and despite the
language in the Last Chance Agreement, CCCTA did allow
the grievance process to go forward after Walls’s March 6 termination. In light of Loudermill’s and Skelly’s emphasis on
the importance of providing the employee with an opportunity
to respond before he is terminated, however, these posttermination procedures alone cannot provide due process. See
Clements, 69 F.3d at 332 (“In the context of process due a terminated public employee, a full post-deprivation hearing does
not substitute for the required pre-termination hearing.”).
Therefore, this post-termination process, absent any pretermination procedure, is insufficient to fulfill CCCTA’s
responsibility under the United States and California Constitutions.

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2.
[11] The dispositive issue, then, is whether, in signing the
Last Chance Agreement, Walls waived his right to a pretermination hearing. A public employee may waive his right
to due process. Ostlund v. Bobb, 825 F.2d 1371, 1373-74 (9th
Cir. 1987); Flippin v. L.A. City Bd. of Civil Service Comm’rs,
148 Cal. App. 4th 272, 281 (Cal. Ct. App. 2007). Nonetheless,
federal courts “indulge every reasonable presumption against
waiver of fundamental constitutional rights” and “do not presume acquiescence in the loss of fundamental rights.” Johnson v. Zerbst, 304 U.S. 458, 464 (1938) (internal citations and
quotation marks omitted). Such a waiver should not be
implied and should not be lightly found. See Ostlund, 825
F.2d at 1373. “Waiver of a constitutional right must be knowing and voluntary.” Id. The presumption against waiver of
constitutional rights applies equally in the criminal and civil
contexts. Gete v. I.N.S., 121 F.3d 1285, 1293 (9th Cir. 1997).
As Walls points out, the Last Chance Agreement contains
no express waiver of a pre-termination hearing or of the right
to due process pursuant to a termination decision. The Agreement does state that “[y]ou and your Union Representative
may not grieve or arbitrate this matter if you fail to comply
with these conditions.” Since grievance and arbitration are
post-termination processes, however, this clause does not conclusively waive Walls’s rights to the pre-termination process
of notice and the opportunity to respond.
[12] The district court held that Walls had waived his right
to a post-termination hearing because the Last Chance Agreement concludes that “non-compliance with the stipulations [of
the Last Chance Agreement] will result in your immediate
and final termination.” This text, however, is also insufficient
to overcome the presumption against waiver of constitutional
rights. First, it is not clear that the term “immediate,” used in
the context of an employment agreement, necessarily signals
that the termination will take effect without a hearing or pro-

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cess of any kind. We have found no federal or California precedent suggesting that the use of the word “immediate” alone
serves to waive a public employee’s due process rights. Second, and more important, it is certainly not clear that Walls
knew and understood when he signed the Agreement that he
was waiving his right to a pre-termination hearing. The record
reflects that such a hearing was provided to him before his
initial discharge on January 27, and the Agreement does not
clearly provide that Walls would not be afforded the same
procedure if terminated for non-compliance with the Last
Chance Agreement’s terms. Indeed, because the Agreement
requires him to waive the post-termination grievance process,
it is logical for Walls to have assumed that, absent an analogous waiver, he would be afforded pre-termination safeguards. Applying the presumption against the waiver of
constitutional rights, we must conclude that Walls did not
knowingly waive his right to due process protections. Because
he received no pre-termination hearing, Walls was denied due
process under the United States and California Constitutions.
III.
[13] Consistent with the analysis above, we affirm the district court’s grant of summary judgment for CCCTA on
Walls’s FMLA claim. We reverse the district court’s grant of
summary judgment for CCCTA on Walls’s due process
claims, and remand with instructions to grant judgment for
Walls on these claims. We leave it to the district court to
determine what remedy, if any, is appropriate.
AFFIRMED
IN
PART,
REMANDED IN PART.

REVERSED

AND