Kennedy v. Bank of America National Association et al

Filing 57

ORDER by Judge Claudia Wilken GRANTING DEFENDANTS 36 MOTION FOR SUMMARY JUDGMENT. (ndr, COURT STAFF) (Filed on 4/21/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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No. C 10-0868 CW
CLAUDIA KENNEDY,

United States District Court
For the Northern District of California

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ORDER GRANTING
DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT

Plaintiff,
v.
BANK OF AMERICA, NATIONAL
ASSOCIATION; BANK OF AMERICA
CORPORATION; STEVE OWEN, and
DOES through 25,

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Defendants.
/

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Defendants Bank of America, National Association1 (Bank of

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America) and Steve Owen move for summary judgment on all claims in

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Plaintiff Claudia Kennedy’s First Amended Complaint (1AC): for

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interference with and retaliation for an exercise of rights under

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the Family and Medical Leave Act (FMLA), 29 U.S.C. §§ 2601 et seq.,

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and for wrongful discharge.

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matter was heard on March 31, 2011.

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argument on the motion and all the papers filed by the parties, the

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Court grants Defendants’ motion for summary judgment on all claims.

Plaintiff opposes the motion.

The

Having considered oral

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Defendants indicate that Plaintiff erroneously names Bank of
America Corporation.

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FACTUAL BACKGROUND
On September 28, 1971, Plaintiff began employment with Bank of
America as a teller in the Newark, California banking center.

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Plaintiff was promoted to various positions within Bank of America

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and, in 2004, she became the banking center manager at the Union

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City branch.

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chief executive officer.

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not directly supervise each employee at the banking center,

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ultimately all employees who worked there reported to her,

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United States District Court
For the Northern District of California

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including the Teller Operations Specialist (TOS), Assistant

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Manager, senior tellers, tellers, senior personal bankers, personal

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bankers and small business specialists.

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Plaintiff’s duties included coaching and developing her associates,

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trying to attain the branch goals, keeping an open line of

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communication with her associates, and managing the banking center

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always to do better.

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responsible for being familiar with, and ensuring that her

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associates complied with, Bank of America’s policies and

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procedures.

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As the banking center manager, Plaintiff acted as its
Pl. Dep., 79-80.

Pl. Dep., 48-50.

Although Plaintiff did

Pl. Dep., 76-80.

Plaintiff was also

Pl. Dep., 50-53.

Plaintiff reported to the Consumer Market Executive (CME) for

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the region.

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the region and Plaintiff began reporting to him.

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Frances Crump and Roselle Lau were Consumer Marketing Managers

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(CMM) who reported to Owen and helped manage the region.

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108-09; 276-77; Crump Dec., ¶ 2.

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In December, 2006, Defendant Steve Owen became CME for
Pl. Dep., 94-95.

Pl. Dep.,

In November, 2007, Plaintiff developed a serious medical

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condition: an abscess on the roof of her mouth.

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30, 2007, Plaintiff went to her dentist, Dr. Gerald Au, for
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On November 29 and

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treatment.

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deal of pain and affected her ability to eat, speak and present

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well to the public.

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Plaintiff did not work from November 29 to December 10, 2007.

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Dep., 113-114; 110-112.2

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not work.

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abscess lasted through September, 2008.

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Pl. Dep., 240.

The abscess caused Plaintiff a great

Pl. Dec. at 2.

Because of the abscess,
Pl.

Plaintiff was paid for the time she did

Crump Dec., ¶ 8, Ex. 4.

The treatment for Plaintiff’s
Pl. Dec. at 2.

To receive leave under the FMLA, the Bank of America associate
handbook requires an employee to: (1) provide as much notice as

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United States District Court
For the Northern District of California

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possible for the leave, even if unforeseeable; (2) provide the

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reason for the leave to the employee's manager, so the manager can

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determine if the leave qualifies for job protection; (3) confirm

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the leave plans with the employee's manager, including the length

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of the leave; (4) initiate the leave by calling the personnel

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center; and (5) provide medical certification, indicating that a

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serious health condition exists, on the form provided by the

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employee’s manager.

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Associate Handbook) and 2 (2005 Bank of America Associate

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Handbook).

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Pl. Dep., 132.

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Crump Dec., Exs. 1 (1996 Bank of America

Plaintiff received copies of the associate handbook.

On November 29, 2007, Plaintiff called one of her subordinates

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at her banking center, the teller supervisor, to inform her that

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Plaintiff had a serious abscess in her mouth and would probably be

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out of work for about a week.

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call Owen nor did she ask anyone to call him to tell him that she

Pl. Dep., 114-16.

Plaintiff did not

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In her declaration, Plaintiff states that she did not work
pursuant to her doctor’s order. Pl.’s Dec., 2. However, in his
deposition, Dr. Au did not state that he told Plaintiff to take
time off work.
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would not be at work for a week.

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time she was out, Plaintiff called the banking center every day.

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Pl. Dep., 115-16.

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Pl. Dep., 116-17.

During the

On December 6, 2007, Owen was informed by Plaintiff’s banking

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center that Plaintiff had been absent from work all week because

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she was sick.

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she would be absent.

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Plaintiff at her home to determine the reasons for her absence from

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work.

As noted above, she had not called Owen to tell him
Owen Dec., ¶ 5.

That same day, Owen called

Pl. Dep., 117-18; Owen Dec. ¶ 5.

According to Plaintiff,

United States District Court
For the Northern District of California

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during this call Owen was angry at her and wanted to know what her

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medical problem was and how long she would be away from work.

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Dep., 118.

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she would be out sick, Owen stated, “You need to get leadership

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into that banking center.

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right now, and you need to get help at your banking center.”

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Dep., 119.

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note and he wanted her to get back to work as soon as possible.

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Pl. Dep., 126.

Pl.

When Plaintiff replied that she did not know how long

You need to call other banking centers
Pl.

Owen also told Plaintiff he wanted to see a doctor’s

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After the call from Owen, Plaintiff called another banking

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center to send help over to the Union City banking center while she

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was absent from work.

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Dep., 124.

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he had raised his voice and screamed at her.

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Plaintiff called Sylvia Jesuit, another banking center manager, to

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tell her about Owen’s call.

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would call Owen and ask him to apologize to Plaintiff.

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127-28.

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having treated the situation correctly and stated that he should

Someone was sent to cover for her.

Pl.

Plaintiff was upset after Owen’s call because she felt
Pl. Dep., 125.

Pl. Dep., at 127.

Jesuit said she
Pl. Dep.,

Within ten minutes, Owen called back, apologized for not

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have shown more compassion.

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Bank of America’s Human Resources hotline, referred to as Advice

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and Counsel, and told the representative that Owen had been abusive

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and rude and that she did not like the tone of his voice.

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Dep., 132-35.

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but stated that he had a right to ask for a doctor’s note.

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Dep., 133-34.

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medical condition.

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and Counsel again to complain about Owen or any other person at

Pl. Dep., 128.

Plaintiff also called

Pl.

The representative apologized for Owen’s behavior,
Pl.

Owen never again asked Plaintiff about her health or
Pl. Dep., 252.

Plaintiff never called Advice

United States District Court
For the Northern District of California

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Bank of America treating her unfairly or rudely.

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426-27.

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Owen to Advice and Counsel, he treated everything she did as wrong

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and subjected her to unfair criticism, and that she was eventually

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fired for things she did not do.

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Pl. Dep., 137-38;

Plaintiff states that, from the time she complained about

Pl. Dec., 8.

Plaintiff obtained a doctor’s note at Owen’s request, but she

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never gave the note to Owen or to anyone else at Bank of America.

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Pl. Dep., 129-30.

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In August, 2008, approximately nine months after Plaintiff was

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absent from work because of the abscess, her banking center

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suffered a $67,500 loss due to traveler’s checks that were

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improperly sold to a customer.

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12; Holland Dec. ¶ 6; Owen Dec., ¶¶ 6-8.

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and practice of selling traveler’s checks required the employee

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responsible for the transaction to verify that the customer had

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sufficient funds to cover the cost of the traveler’s checks.

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Dep. 154; Owen Dec. ¶ 6.

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acceptable for the purchase of traveler’s checks.

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71; Owen Dec., ¶ 6.

Pl. Dep., 179; 183-84; 203-08; 211Bank of America’s policy

Pl.

Checks from other banks were not

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Pl. Dep., 170-

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On August 29, 2008, a customer presented two Citibank checks

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to the TOS at Plaintiff’s banking center to purchase traveler’s

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checks in the amount of $67,500.

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TOS sold the traveler’s checks to the customer and the customer’s

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Citibank account had insufficient funds to cover their cost.

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Dep., 178-80; 182-84; 203-208.

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of the banking center when the traveler’s checks were sold.

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Dep., 161.

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for her approval, and she initialed them.

Pl. Dep., 161-62; 168-71.

The

Pl.

Plaintiff states that she was out
Pl.

Later, the TOS brought the Citibank checks to Plaintiff
Pl. Dep., 171-72.

When

United States District Court
For the Northern District of California

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she initialed the checks, Plaintiff did not know they were for the

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purchase of traveler’s checks; she thought they were for deposit.

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Pl. Dep., 171-72.

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to initial the checks, and she never asked him.

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203-08; 211-12.

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the country.

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The TOS did not tell Plaintiff why he wanted her
Pl. Dep., 174-76;

Plaintiff later learned that the customer had left

Pl. Dep., 182-83.

Other managers had been terminated for incurring losses as low

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as $3,000.

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Plaintiff’s employment for the $67,500 loss because of her long

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tenure with Bank of America and her connections to the employees,

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clients and community.

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Plaintiff a final written warning

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(1) Plaintiff had failed to meet performance expectations by

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approving a large transaction that resulted in a “returned item;”

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(2) Plaintiff was expected to meet all of the requirements for the

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manager position she held including using sound judgment and

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protecting the bank from losses; (3) Plaintiff was expected to

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comply with all Bank of America policies, procedures, guidelines

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and conditions of employment, including but not limited to those

Crump Dec., ¶ 4.

Owen decided not to terminate

Owen Dec., ¶ 8.

Instead, Owen issued

which indicated that:

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set forth in the Associate Handbook and Bank of America Code of

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Ethics; and (4) Plaintiff was expected to demonstrate immediate and

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sustained improvement in the areas set forth above.

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The warning also indicated that if Plaintiff failed to meet these

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expectations, she would be subject to disciplinary action, up to

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and including termination.

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Defs.’ Ex. D.

Id.

At the end of 2008, Owen and his assistants, Crump and Lau,

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were concerned that full-time banking center employees were not

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working a full shift on Saturdays, and expressed this concern to

United States District Court
For the Northern District of California

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the banking center managers.

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Crump Dec., ¶ 10.

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center managers ensure that their full-time employees worked a full

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eight hours.

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compliance, Owen, Crump and Lau initiated an investigation of all

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banking centers in the region.

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¶ 10; Crump Dec., ¶ 11.

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Owen’s team went unannounced to various banking centers on random

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Saturdays to determine if employees were working their designated

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shifts.

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visited Plaintiff’s Union City banking center and found that no

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employees were present.

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Dec., ¶ 11.

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banking centers, including Plaintiff’s, for copies of employees’

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weekly time sheets that included the day of the random Saturday

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visit.

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¶ 11.

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employees at Plaintiff’s banking center had been paid for the

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entire day of the random Saturday visit, even though the team

Pl. Dep., 275-78; Owen Dec., ¶ 9;

Owen, Crump and Lau requested that all banking

Pl. Dep., 265-68; 275-78; 281-86.

To ensure

Pl. Dep., 281-83;310-13; Owen Dec.,

As part of the investigation, members of

Pl. Dep., 281-83; Owen Dec., ¶ 10, Crump Dec., ¶ 11.

Lau

Pl. Dep., 281-86; Owen Dec., ¶ 10; Crump

The next month, the marketing team asked some of the

Pl. Dep., 288-92; 299; 210-13; Owen Dec., ¶ 10; Crump Dec.,
After reviewing the time sheets, Crump discovered that some

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believed that no employees had worked a full shift that day.

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Dec., ¶ 11; Crump Dec., ¶ 12-14.

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assistant manager was at the branch on the Saturday that Lau made

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her visit, but did not answer the door because she was in the

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banking center by herself.

Owen

Plaintiff testified that her

Pl. Dep., 282.

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Crump was also suspicious of the time sheets of two personal

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bankers at Plaintiff’s banking center because they reflected that

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the employees repeatedly signed out at the same time each day, as

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opposed to more random times.

Crump Dec., ¶ 12-14.

Owen’s team

United States District Court
For the Northern District of California

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began interviewing employees at Plaintiff’s banking center and were

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informed that two personal bankers were submitting false time

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sheets, with the approval of Plaintiff, by missing full lunch

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periods in exchange for leaving work early in violation of Bank of

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America policy and California labor law.

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Dec., ¶ 15-22.

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approval.

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interviewed by Owen, Crump and Lau about the “falsified” time

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sheets, she told them that approval of the time sheets was the

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responsibility of the TOS and the operations manager and that she

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had nothing to do with them.

Owen Dec., ¶ 12-20; Crump

Plaintiff testified that she did not give such

Pl. Dep., 319.

Plaintiff declares that, when she was

Pl. Dec., 7.

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Owen, Crump and Lau believed that employees at Plaintiff’s

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banking center were not following Bank of America’s wage and hour

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policy.

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trust and confidence in Plaintiff’s ability to manage her branch

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effectively.

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terminated Plaintiff’s employment.

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Owen Dec., ¶¶ 19-23; Crump Dec., ¶¶ 22-25.

Owen Dec., ¶¶ 19-23.

Owen lost

On March 6, 2009, Owen
Defs.’ Ex. F.

In her 1AC, Plaintiff asserts three claims under the FMLA and

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a state law claim for wrongful discharge.3

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PROCEDURAL BACKGROUND

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On July 22, 2009, Plaintiff filed a complaint against Bank of

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America and Owen in state court alleging age discrimination,

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retaliation, harassment and failure to prevent retaliation and

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harassment in violation of California’s Fair Employment and Housing

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Act, and common law claims for retaliatory wrongful discharge and

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breach of the implied covenant of good faith and fair dealing.

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Plaintiff voluntarily dismissed that action because the state

United States District Court
For the Northern District of California

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discrimination claims were barred by the National Bank Act.

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March 1, 2010, Plaintiff filed her complaint in this action,

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asserting a claim for discrimination under 42 U.S.C. § 1981.

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her opposition to Defendants’ motion to dismiss, Plaintiff

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acknowledged that her claim was not cognizable because she is not a

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member of a racial minority group.

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amend to assert a claim based upon a violation of the FMLA.

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4.

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Plaintiff leave to amend to allege a cognizable cause of action on

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some basis other than § 1981.

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In

She requested leave to
Id. at

The Court granted Defendants’ motion to dismiss and granted

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Id.

On

Plaintiff filed this 1AC.

LEGAL STANDARD
I. Summary Judgment
Summary judgment is properly granted when no genuine and

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disputed issues of material fact remain, and when, viewing the

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evidence most favorably to the non-moving party, the movant is

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clearly entitled to prevail as a matter of law.

Fed. R. Civ. P.

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In her opposition, Plaintiff does not respond to Defendants’
arguments for judgment on her wrongful discharge claim. Therefore,
she concedes this claim. Summary judgment is granted to Defendants
on this claim.
9

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56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986);

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Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285, 1288-89 (9th Cir.

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1987).

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The moving party bears the burden of showing that there is no

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material factual dispute.

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the opposing party’s evidence, if it is supported by affidavits or

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other evidentiary material.

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815 F.2d at 1289.

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favor of the party against whom summary judgment is sought.

Therefore, the court must regard as true

Celotex, 477 U.S. at 324; Eisenberg,

The court must draw all reasonable inferences in

United States District Court
For the Northern District of California

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Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

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587 (1986); Intel Corp. v. Hartford Accident & Indem. Co., 952 F.2d

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1551, 1558 (9th Cir. 1991).

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Material facts which would preclude entry of summary judgment

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are those which, under applicable substantive law, may affect the

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outcome of the case.

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are material.

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(1986).

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II. FMLA

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The substantive law will identify which facts

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

The FMLA creates two employee rights: the right to use up to

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twelve weeks of unpaid leave per year for protected reasons, 29

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U.S.C. § 2612(a)(1), and the right to return to the same job or an

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equivalent job after using protected leave, 29 U.S.C. § 2614(a).

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Bachelder v. America West Airlines, Inc., 259 F.3d 1112, 1122 (9th

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Cir. 2001).

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FMLA: (1) under 29 U.S.C. § 2615(a)(1), interference claims

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asserting that an employer has denied, interfered with or

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restrained the exercise or the attempt to exercise any right

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protected by the Act; (2) under 29 U.S.C. § 2615(a)(2),

Employees may state three types of claims under the

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discrimination claims asserting that an employer has considered the

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taking of FMLA leave as a negative factor in employment actions,

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such as hiring, promotions or disciplinary proceedings; and

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(3) under 29 U.S.C. § 2615(b), discrimination claims asserting that

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the employer has considered as a negative factor in employment

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decisions the employee’s filing of a complaint against the

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employer’s conduct unlawful under the FMLA.

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Where the claim is that the employer took an adverse
employment action as a result of the employee’s use of FMLA leave

United States District Court
For the Northern District of California

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or opposition to an unlawful act, it is not treated as one for

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retaliation or discrimination under the burden-shifting analysis

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set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973),

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but as a claim of interference with rights guaranteed by the Act.

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Bachelder, 259 F.3d at 1124; Lew v. Superior Court of California,

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2008 WL 728895, *10 (N.D. Cal.).

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such a claim, the plaintiff must demonstrate that there is a

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triable issue of material fact as to whether the plaintiff’s FMLA

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leave or opposition to the employer’s FMLA violation was

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impermissibly considered as a factor in the adverse employment

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action.

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To survive summary judgment on

Id.
EVIDENTIARY OBJECTIONS

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Defendants object to certain evidence presented by Pl.

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The Court has reviewed these evidentiary objections and has not

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relied on any inadmissible evidence.

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each objection individually.

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relied on evidence to which Defendants object, such evidence has

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been found admissible and the objections are overruled.

The Court will not discuss

To the extent that the Court has

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DISCUSSION
Plaintiff alleges that, when Owen called her at home while she

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was sick, he interfered with her right to take FMLA leave.

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also claims that, when she returned to work, Owen’s changed

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behavior toward her and his eventual termination of her employment

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constitute retaliation for taking FMLA leave and for opposing

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Defendants’ illegal acts under the FMLA.

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that all of Plaintiff’s FMLA claims fail because her conduct was

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not protected under the FMLA.

She

Defendants first argue

In the alternative, Defendants argue

United States District Court
For the Northern District of California

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that Plaintiff’s claims fail because she does not raise a dispute

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of material fact regarding interference or retaliation.

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I. Acts Protected Under the FMLA

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The FMLA is not implicated and does not protect employees

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against disciplinary actions based upon absences not taken for one

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of the reasons enumerated in the Act.

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Marchisheck v. San Mateo County, 199 F.3d 1068, 1074 (9th Cir.

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1999).

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serious health condition that makes the employee unable to perform

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the functions of his or her employment.

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§§ 825.113(a and (b).4

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injury, impairment, or physical or mental condition that involves,

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among other things, continuing treatment by a health care provider.

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Id. at 1074 (citing 29 U.S.C. § 2611(11)).

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treatment by a health care provider, the employee must show a

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period of incapacity of at least three consecutive days and

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treatment two or more times by a health care provider.

Bachelder, 259 F.3d at 1125;

To trigger FMLA protection, the employee must have a

Id. at 1073; 29 C.F.R.

A serious health condition is an illness,

To establish continuing

29 C.F.R.

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The FMLA also applies in other circumstances which are not
relevant to Plaintiff’s claims.
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§ 825.115(a)(1).
The FMLA does not protect employees who fail to follow the

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statutory and regulatory requirements for providing notice and a

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certification from a health care provider of the medical condition

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necessitating the leave.

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1181, 1185-86 (9th Cir. 2002).

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their employers in advance if they plan to take foreseeable leave

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under the Act, they need not expressly assert their FMLA rights or

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even mention the FMLA.

Baily v. Southwest Gas Co., 275 F.3d
Although employees must notify

Id. at 1185 (citing Bachelder, 259 F.3d at

United States District Court
For the Northern District of California

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1130).

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leave to allow the employer to determine whether the leave

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qualifies under the FMLA, and the employee must disclose the

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anticipated duration of the absence.

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(employee responsibilities); 29 C.F.R. § 825.303(b) (content of

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notice).

However, the employee must explain the reasons for the

29 C.F.R. § 825.301(b)

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If the need for leave is not foreseeable, an employee must

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provide notice to the employer as soon as practicable under the

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circumstances of the particular case.

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employee must comply with the employer's usual and customary notice

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requirements for requesting leave, absent unusual circumstances.

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29 C.F.R. § 825.303(c).

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information is not sufficient notice to trigger an employer’s

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obligations under the Act.

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29 C.F.R. § 825.303(a).

An

Calling in sick without providing more

29 C.F.R. § 825.303(b).

An employer may require that the employee obtain, in a timely

25

manner, a written certification by a health care provider.

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U.S.C. § 2613(a); 29 C.F.R. § 825.305(a).

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certification must specify the medical necessity for the leave and

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the expected duration of the leave, and must include a statement
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To be sufficient, the

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that the employee is unable to perform the essential functions of

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his or her job because of the medical condition.

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§ 2613(b); 29 C.F.R. § 825.306(a).

29 U.S.C.

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An employee is protected from retaliation for opposing any

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practice which is unlawful under the FMLA or any practice which the

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employee reasonably believes is a violation of the FMLA.

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§ 825.303(e); Gruppo v. Fedex Freight Syst., Inc., 296 Fed. Appx.

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660, 664 (10th Cir. 2008); Hoffman v. Professional Med Team, 270 F.

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Supp. 2d 954, 965 (W.D. Mich. 2003).

28 C.F.R.

Thus, an employee may state a

United States District Court
For the Northern District of California

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retaliation claim even if the employer did not willfully violate

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the FMLA.

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subjectively believed the employer’s conduct violated the FMLA.

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Wood v. Handy & Harman Co., 2006 WL 3228710 (N.D. Okla.).

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Id.

The plaintiff must establish that he or she

Defendants argue that, because Plaintiff never submitted a

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request for FMLA leave, she never intended to take such leave and,

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therefore, she cannot now invoke protection under the FMLA.

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also argue that, even if she intended to take FMLA leave, the fact

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that she failed to follow Bank of America's notice requirements for

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taking such leave is fatal to her claims.

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respond to this argument.5

They

Plaintiff does not

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5

Instead of citing evidence disputing Defendants' arguments in
her opposition, Plaintiff submits a separate document entitled,
"Plaintiff's Evidence in Opposition to Defendants' Motion," in
which, on one side of the page, she lists Defendants' contentions,
and, on the other side of the page, she attempts to list her
factual responses. However, instead of using pin cites, she cites
many pages of deposition transcripts, making it difficult to find
the testimony to which she refers. Defendants object to the manner
in which Plaintiff presents her evidence because it is not in
compliance with Civil Local Rule 56-2(a), the standing order of
this Court, and Rule 56(c)(1)(A) of the Federal Rules of Civil
Procedure. Although Plaintiff’s opposition is not in compliance
(continued...)
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At her deposition, in response to the question, "Did you

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submit some sort of request to go out on a medical leave to Bank of

3

America?", Plaintiff responded, "It wasn't a leave.

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Pl. Dep., 110: 7-9.

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any leave of absence from Bank of America, a medical leave of

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absence, when you submitted some sort of form to take some sort of

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leave?" and Plaintiff responded, "No, sir."

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Plaintiff testified that she never informed Owen, her immediate

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supervisor, or Advice and Counsel in the Human Resources Department

I was absent."

Later, Plaintiff was asked, "Did you ever take

Pl. Dep., 112: 19-23.

United States District Court
For the Northern District of California

10

about her absence, nor did she direct anyone else to do so.

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Dep., 116: 13-18.

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taking sick leave by calling her assistant at her banking center,

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giving notice that she was going to be absent for approximately one

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week because of the abscess.

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Pl.

Instead, Plaintiff followed the procedure for

Pl. Dep., 114: 10-25, 115: 1-25.

Plaintiff's testimony belies her claim that she intended to

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take a leave of absence under the FMLA.

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to her manager, Bank of America’s Human Resource Department or

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anyone in authority of her intention to take FMLA leave, nor did

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she provide sufficient information for them to determine if the

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FMLA covered the requested leave, as required by 29 C.F.R.

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§§ 825.303(a) and (b).

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she cites the deposition of her dentist, Dr. Au, to support her

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contention that the abscess caused her considerable pain and

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affected her ability to eat, speak, and present well and was

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potentially life threatening, if untreated.

She never provided notice

In Plaintiff’s statement of disputed facts,

However, Plaintiff

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5

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28

(...continued)
with these rules, in the interests of justice which favors ruling
on the merits of a claim, the Court considers Plaintiff’s
opposition.
15

1
2

informed no one at Bank of America of these facts.
Furthermore, even if Plaintiff intended to take FMLA leave,

3

she failed, as required by 29 C.F.R. § 825.303 (c), to follow

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procedures prescribed in the Bank of America employee handbook.

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She never gave Owen the doctor’s note that he requested.6

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Based on the foregoing, Plaintiff’s absence from work from

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November 28 to December 10, 2007 was not covered under the FMLA.

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Thus, her claims--for interference with FMLA leave, retaliation for

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taking FMLA leave, and retaliation for complaining about

United States District Court
For the Northern District of California

10

interference with FMLA leave--fail.

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justice, the Court addresses all the claims on the merits.

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II. Claim of Interference Based on Owen’s Telephone Call

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However, in the interests of

In her 1AC, Plaintiff alleges that Owen interfered with her

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rights under the FMLA when he called her at home while she was

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absent from work.

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fails because Plaintiff took all the time off she said she needed

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and, thus, Owen did not interfere with her ability to take any

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requested time off.

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apparently conceding it.

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to be absent from work after December 11, 2007 or that she would

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have requested leave under the FMLA for additional time, but for

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Owen’s phone call.

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interfered with her leave would fail.

1AC, ¶ 10.

Defendants argue that this claim

Plaintiff does not respond to this argument,
She presents no evidence that she needed

In any event, her claim that Owen’s call

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6

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28

Plaintiff submits a doctor’s note that she obtained but never
gave to Owen or any other person at Bank of America. Pl.’s Dec.,
Ex. A. The note is insufficient to meet the requirements of 29
U.S.C. § 2613(b) and 29 C.F.R. § 825.306(a) because it merely
states that Plaintiff had dental appointments on November 29,
November 30, December 7 and December 10 and requests that
Plaintiff’s absence from November 30 to December 10, 2007 be
excused.
16

1

As mentioned above, to establish a prima facie case for FMLA

2

interference, a plaintiff must show that she gave notice of her

3

intention to take leave and that the employer denied her the

4

benefits to which she was entitled.

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Metropolitan Transp. Dist., 2005 WL 1307695, *6 (D. Or. 2005).

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Notice requires the employee to explain the reasons for the needed

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leave so as to allow the employer to determine whether the leave

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qualifies under the FMLA.

9

Farrell v. Tri-County

Id.

Plaintiff did not notify Owen that she needed to be absent for

United States District Court
For the Northern District of California

10

medical reasons.

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2007, when he learned that she had not been at work for

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approximately six days.

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detail what Owen said to her in his phone call: he asked how long

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she would be absent from work and what her medical problem was; he

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told her that she needed to get back to work as soon as possible;

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he told her that, while she was absent, she needed to get coverage

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for her banking center; and he told her that she needed to give him

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a doctor’s note.

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Rather, Owen called Plaintiff on December 6,

At her deposition, Plaintiff described in

Pl. Dep., 118-19, 126.

Owen’s questions and instructions do not amount to

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interference with Plaintiff’s leave.

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to work as soon as possible cannot be interpreted as denying or

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threatening to deny Plaintiff leave under the FMLA.

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she thought Owen was being abusive to her in this call, Plaintiff

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replied that it was his loud tone of voice and what he said.

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Owen raised his voice when Plaintiff had been absent from work for

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a week without informing him may have demonstrated discourtesy or

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poor communication skills, but did not interfere with her leave.

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In contrast, in her declaration, Plaintiff states that Owen
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His request that she return

When asked why

That

1

told her “not to miss work because of [her medical] condition even

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though it impacted major life activities and [her] ability to

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interact with customers.”

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her declaration is inconsistent with her deposition testimony

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describing what Owen said.

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a “sham,” within the meaning of Kennedy v. Allied Mut. Ins. Co.,

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952 F.2d 262, 266-67 (9th Cir. 1991) (party cannot create an issue

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of fact contradicting prior deposition testimony).

9

Pl. Dec., 2.

Plaintiff’s statement in

The Court finds that the declaration is

Therefore, Plaintiff fails to establish a disputed issue of

United States District Court
For the Northern District of California

10

material fact that she intended to take leave under the FMLA or

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that Owen interfered with any requested leave.

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for summary judgment on Plaintiff’s interference claim is granted.7

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III. Retaliation for Exercising Her Rights and For Opposing
An Alleged Unlawful Practice

Defendants’ motion

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Defendants argue that Plaintiff cannot demonstrate a triable
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issue of material fact as to whether her taking leave–even if it
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had been FMLA leave--or complaining about Owen’s phone call were
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negative factors in the decision to terminate her employment.
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Defendants point out that Plaintiff was terminated fifteen months
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after her absence from work and her complaint about Owen, and that
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there were two intervening events breaking any causal chain between
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her absence and complaint and her termination.

Plaintiff responds

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that, after her absence and complaint about Owen, what had been a
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collegial business relationship between Owen and herself soured
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markedly.

Moreover, she argues that the two reasons Defendants

25
give for terminating her are pretextual because she was not at the
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27
28

7

Because summary judgment is granted to Defendants, the Court
does not address Defendants’ argument that the interference claim
fails because Plaintiff does not submit evidence regarding damages.
18

1

banking center when the traveler’s checks were sold and she was not

2

responsible for the banking center employees’ compliance with Bank

3

of America’s policy on time cards.

4

The fact that Plaintiff was terminated fifteen months after

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her absence from work and her complaint about Owen negates any

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inference that the termination was motivated by those events.

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Clark County Schl. Dist. v. Breeden, 532 U.S. 268, 273 (2001) (to

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provide an inference of causality between employer’s knowledge of

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protected activity and adverse employment action, temporal

See

United States District Court
For the Northern District of California

10

proximity must be very close; a three month and four month period

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have been held to be insufficient); Villiarimo v. Aloha Island Air,

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Inc., 281 F.3d 1054, 1065 (9th Cir. 2002) (eighteen-month lapse

13

between protected activity and adverse employment action is “simply

14

too long, by itself, to give rise to an inference of causation”);

15

Swan v. Bank of Am., 360 Fed. Appx. 903, 906 (9th Cir. 2009)

16

(termination four months after employee’s return from leave too

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remote in time to support causation based on temporal proximity).

18

Nor is there evidence that Defendants’ asserted reasons for

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her termination were mere pretext.

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statements that other employees were responsible for the $67,500

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loss at her banking center and the time sheets of the employees she

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supervised does not negate the fact that these events took place

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and that she was the manager of the banking center where they

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occurred.

25

her responsible because “Bank of America is not the United States

26

Navy where a ship captain is responsible for everything that

27

happens on the ship.”

28

admitted that, as the manager, ultimately everyone in the banking

Plaintiff’s self-serving

Plaintiff argues that being the manager does not make

However, at her deposition, Plaintiff

19

1

center reported to her and she was responsible for enforcing Bank

2

of America’s policies and procedures.

Pl. Dep., 51, 79.

3

Finally, even if Plaintiff had taken FMLA leave, and had

4

believed that Owen had tried to interfere with her leave, this is

5

not what she complained of to her employer.

6

about Owen to Advice and Counsel concerned his tone of voice.

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her deposition, she testified that she told the representative at

8

Advice and Counsel that “I could not believe that he could talk to

9

me like that.

Plaintiff’s complaint

No one had ever talked to me like that.

At

I didn’t

United States District Court
For the Northern District of California

10

abuse my absenteeism.

11

for the way that I was spoken to.”

12

again about her complaint, Plaintiff testified that she told the

13

representative at Advice and Counsel that Owen “was abusive.

14

was rude.

15

Dep., 134.

16

declaration, stating that she “reported Owen’s violation of my work

17

place Civil Rights to be off work on medical leave.”

18

Court finds that this is a “sham” declaration and does not create a

19

dispute of fact to survive summary judgment.

20

at 266-67.

21

I was always at work. . . . They apologized
Pl.’s Dep., 133-34.

When asked

I said I was shocked by the tone of his voice.”

He

Pl.’s

Again, Plaintiff contradicts her deposition in her

Again, the

See Kennedy, 952 F.2d

Nor is there evidence that Owen understood that Plaintiff had

22

complained that he had interfered with her right to take leave.

23

Accordingly, Owen couldn’t have retaliated against her for

24

complaining that he had interfered with her right to take leave.

25

For all these reasons, Plaintiff does not establish a triable

26

issue of material fact that Defendants’ termination of her

27

employment implicated the FMLA, or that the reasons for her

28

termination were pretextual.

Therefore, Defendants’ motion for
20

1

summary judgment on these claims is granted.

2

CONCLUSION

3

For the foregoing reasons, Defendants’ motion for summary

4

judgment on all of Plaintiff’s claims is granted.

5

enter judgment and close the file.

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costs from Plaintiff.

The Clerk shall

Defendants shall recover their

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8

IT IS SO ORDERED.

9
United States District Court
For the Northern District of California

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Dated: 4/21/2011
CLAUDIA WILKEN
United States District Judge

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