Perez v. Barrick Goldstrike Mines, Inc.
ORDER - THE COURT ORDERS that Defendant Barrick Goldstrike Mines, Inc.'s Motion for Summary Judgment (ECF No. 29 ) is DENIED. Signed by Judge Robert C. Jones on 9/7/2021. (Copies have been distributed pursuant to the NEF - SMR)
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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
Case No. 3:19-cv-0067-RCJ-WGC
BARRICK GOLDSTRIKE MINES, INC., et
The plaintiff, Tomas Perez, brought this suit alleging defendant Barrick Goldstrike Mines,
12 Inc. (Barrick), violated his rights under the Family and Medical Leave Act, 29 U.S.C. §§ 2611-2654
13 (FMLA) and tortiously discharged him in violation of strong public policy. Barrick moves for sum14 mary judgment (ECF No. 29), which Perez has opposed (ECF No. 34). Having read and carefully
15 considered the pleadings, the competent evidence in the record, the arguments of the parties, and the
16 applicable legal authority, the Court will deny the motion.
Standard of Review
In considering a motion for summary judgment, the court performs “the threshold inquiry of
19 determining whether there is the need for a trial—whether, in other words, there are any genuine
20 factual issues that properly can be resolved only by a finder of fact because they may reasonably be
21 resolved in favor of either party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); United
22 States v. Arango, 670 F.3d 988, 992 (9th Cir. 2012). To succeed on a motion for summary judgment,
23 the moving party must show (1) the lack of a genuine issue of any material fact, and (2) that the
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1 court may grant judgment as a matter of law. Fed. R. Civ. Pro. 56(c); Celotex Corp. v. Catrett, 477
2 U.S. 317, 322 (1986); Arango, 670 F.3d at 992.
A material fact is one required to prove a basic element of a claim. Anderson, 477 U.S. at
4 248. The failure to show a fact essential to one element, however, "necessarily renders all other
5 facts immaterial." Celotex, 477 U.S. at 323. Additionally, “[t]he mere existence of a scintilla of
6 evidence in support of the plaintiff’s position will be insufficient.” United States v. $133,420.00 in
7 U.S. Currency, 672 F.3d 629, 638 (9th Cir. 2012) (quoting Anderson, 477 U.S. at 252).
“[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate
9 time for discovery and upon motion, against a party who fails to make a showing sufficient to estab10 lish the existence of an element essential to that party’s case, and on which that party will bear the
11 burden of proof at trial.” Celotex, 477 U.S. at 322. “Of course, a party seeking summary judgment
12 always bears the initial responsibility of informing the district court of the basis for its motion, and
13 identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions
14 on file, together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine
15 issue of material fact.” Id., at 323. As such, when the non-moving party bears the initial burden of
16 proving, at trial, the claim or defense that the motion for summary judgment places in issue, the
17 moving party can meet its initial burden on summary judgment "by 'showing'–that is, pointing out
18 to the district court–that there is an absence of evidence to support the nonmoving party's case." Id.,
19 at 325. Conversely, when the burden of proof at trial rests on the party moving for summary judg20 ment, then in moving for summary judgment the party must establish each element of its case.
Once the moving party meets its initial burden on summary judgment, the non-moving party
22 must submit facts showing a genuine issue of material fact. Fed. R. Civ. Pro. 56(e); Nissan Fire &
23 Marine Ins. Co. v. Fritz Companies, Inc., 210 F.3d 1099, 1103 (9th Cir. 2000). As summary judg24 ment allows a court "to isolate and dispose of factually unsupported claims or defenses," Celotex,
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1 477 U.S. at 323-24, the court construes the evidence before it "in the light most favorable to the
2 opposing party." Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970). The allegations or denials
3 of a pleading, however, will not defeat a well-founded motion. Fed. R. Civ. Pro. 56(e); Matsushita
4 Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). That is, the opposing party
5 cannot “‘rest upon the mere allegations or denials of [its] pleading’ but must instead produce evi6 dence that ‘sets forth specific facts showing that there is a genuine issue for trial.’” Estate of Tucker
7 v. Interscope Records, 515 F.3d 1019, 1030 (9th Cir. 2008) (quoting Fed. R. Civ. Pro. 56(e)).
The Court considers the following facts as undisputed for purposes of Barrick’s summary
10 judgment motion. Tomas Perez worked as an underground miner for Barrick. On November 1,
11 2017, at about 5:00 a.m., he was driving a hauler truck through the mine. While rounding a corner,
12 he swerved to avoid a rock. The truck, moving at about 6 or 7 miles an hour, struck one of the
13 shotcrete-covered walls of the mine. Perez’s left side ribs struck the armrest, 1 leaving him momen14 tarily unable to breath and shaking.
Perez was aware of Barrick’s policy requiring drivers to report incidents. A driver must
16 report an incident that damages the walls or the truck; that is, damage that requires repair for safety
17 or operational reasons. Within the context of the mine, the scraping of a truck against the mine walls
18 is considered “normal wear and tear” resulting from driving large vehicles in tight quarters. Normal
19 wear and tear does not need to be reported. A driver must also report an injury. Perez began to
20 recover his breathing and to feel better. He inspected the walls and the truck but did not find any
The driver’s seat in the truck faces at a 45-degree angle to the direction of travel,
requiring drives to look to their left as they drove. As such, Perez’s forward momentum
would take the left side of his body into the armrest.
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1 damage. Perez did not notify his supervisor but instead finished his shift, driving one or two more
Perez did not realize he was injured until the end of his shift. While riding the elevator out
4 of the mine, or perhaps when exposed to the cold and wind on the surface, he began feeling pain.
5 Eloy Diaz, a mine worker on the Mine Rescue team, became aware that Perez was in pain. Diaz
6 instructed the bus driver, Jesse Gonzalez, to immediately return to the administrative building, where
7 the showers and first aid room were located. Gonzalez did not follow Diaz’s instruction, despite
8 Diaz’s insistence that Perez was injured, because he did not believe Perez was injured. Diaz took
9 Perez to a different bus, which left immediately, and notified dispatch that Perez was coming in and
10 was injured.
Diaz took Perez to the first aid room, where Perez was seen by Nikkayla Simon (Barrick’s
12 health and safety coordinator), who is trained as an EMT, and several other Barrick employees
13 trained as EMTs. Perez indicated his ribs hurt. Simon assessed Perez’s rib cage “and noted no
14 redness or bruising.” She felt for abnormalities but found none. Perez stood the entire time and
15 stated it hurt to breath. Simon noted Perez’s lung sounds were clear and that his SPO2 was normal.
While Perez was being treated by the EMTs, Gonzalez went into the first aid room and
17 watched the examination of Perez. Gonzalez formed an opinion that Perez was faking his injury
18 because he did not see any physical marks indicating an injury and he did not see Perez withdraw
19 from the EMT’s touches in a manner consistent with an injury.
Simon splinted Perez’s ribs. Perez declined an ambulance, but accepted transportation in a
21 Barrick vehicle to a clinic in town where he was seen by Dr. Black. Dr. Black diagnosed Perez with
22 a left chest wall contusion, evaluated Perez as “totally unable to perform” his job duties, and set a
23 follow-up appointment for November 6, 2017. Perez did not allow Barrick’s workers comp
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1 representative to be in the room while he was being examined, but Dr. Black talked with her imme2 diately following his examination of Perez.
While Perez was being transported to the clinic, Barrick began investigating the event. Two
4 Barrick employees went into the mine to the location of the accident that Perez had identified. The
5 employees could not find where Perez’s truck had hit the wall, or find where the tires had deviated,
6 or find a rock on the ground. The employees captured a video of the mine walls and took photo7 graphs of the truck the Court noted earlier. This visual evidence reveals that both the mine walls
8 and Perez’s truck have numerous scrapes. Simon, now acting in her capacity as Barrick’s safety
9 coordinator, ordered statements from all people involved, ordered a map of the incident location be
10 created, and indicated they should try and figure out exactly where the incident occurred. Later that
11 day, Gonzalez submitted his statement acknowledging that he had not believed Perez was injured
12 and his reasons for that disbelief. He noted that “the first time [he] knew there actually was a prob13 lem” was when he went to the first aid rooms where 3 EMTs were taking care of Perez.
On November 4, Simon and Richard Scow (Perez’s immediate supervisor) received an un-
15 solicited e-mail from Gonzalez. Gonzalez wrote that, on November 2, he was told by another miner
16 (on condition of anonymity) that Perez was faking his work injury so that he could fix his rental
Perez had his follow-up appointment with Dr. Black on November 6. Dr. Black prescribed
19 a muscle relaxant for Perez and again determined that Perez was “totally unable to perform” his job
20 duties. This was again communicated immediately to Barrick’s workers comp representative, in Dr.
21 Black’s office.
Around the same time, Simon and another Barrick employee talked with Gonzalez regarding
23 his November 4, e-mail.
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In response to Gonzalez’s e-mail, Sandra Bell (employed by Barrick as human resources
2 worker’s compensation), initiated the hiring of a private investigator to surveille Perez. On Novem3 ber 7, the investigator spent a total of 6.2 hours in his investigation, and observed Perez driving a
4 truck, walking with “a fluid and steady pace,” and sitting at a gaming table in a casino for 45 minutes.
5 On November 8, the investigator spent nearly nine hours in his investigation, though he only ob6 served Perez arriving back at his residence in the afternoon. On November 9, the investigator spent
7 17 hours investigating Perez, starting early in the morning. During the day, he observed Perez driv8 ing, going to a casino, going to a liquor store, and going to a mobile home where he conducted
9 construction work on the interior and exterior. The investigator captured video of Perez, including
10 video showing Perez using a drill and carry items such as a ladder, sheet metal, and wood panels.
Sometime during the period of one to one-and-a-half weeks after the event, four Barrick
12 employees (including Simon) met with Perez in Barrick’s shared business center in Elko. The meet13 ing lasted about an hour during which they discussed the November 1, incident with Perez. During
14 the meeting, Perez stated that he had thrown the rock into the back of his truck.
On November 10, after receiving the investigator’s initial report, Barrick made the decision
16 to deny Perez’s workers compensation claim.
On November 16, the investigator produced his final report of his surveillance.
Perez had a follow-up appointment with Dr. Black on November 16, 2017, and Dr. Black
19 cleared Perez to return to work on November 19, 2017, with no limitations. Dr. Black continued to
20 prescribe a muscle relaxant that Perez would take at bedtime.
On November 20, 2017, Scow, Chuck Pollard, and Joannie Jarvis created a memorandum
22 recommending Perez’s termination. They noted that the accident occurred when Perez hit a rock
23 “while operating a forklift,” causing the machine to jar, resulting in a Lost Time Incident. They
24 noted “Perez did not immediately report the incident as per company policy” but continued to work
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1 and completed his shift. They noted that “co-workers reported observing him participating in ‘horse2 play’ both on the bus at quitting time and on the cage at the end of the shift.” The noted that “a co3 worker observed [Perez] exhibiting signs of distress and asked him if he was ok,” at which time
4 Perez reported his injury in the earlier incident. They noted that “Diaz informed the driver that
5 [Perez] need to be checked out and they immediately went to have him looked at by [Health and
6 Safety].” They noted Simmons looked at Diaz. They noted that Perez was taken to the doctor. They
7 noted that Perez “refused to allow” the employee from the “Barrick Work Comp team” into the room
8 “as is customary.” They noted Dr. Black “diagnosed [Perez] with a soft tissue contusion, given
9 medication and put off work for a period of time to heal.”
They noted that Simon received a report from an employee stating that they knew Perez was
11 “faking an injury so that he would have time to stay home to do repairs on his rentals.”
They noted that, during Perez’s follow-up visit with Dr. Black, he again did not allow the
13 “Work Comp rep into the room.” They noted “the investigation could not corroborate [Perez’s]
14 timeline or story.” They noted there was no “mark on the rib [wall of the mine] that would indicate
15 he had made contact.” They noted Perez “stated that once he had come to a stop that he picked up
16 the rock [the “size of a Kleenex box”] and tossed it into the truck. They noted, “the investigation
17 team confirmed that he had no problem bending and picking up this rock to throw it into the truck.”
18 They noted that, as a result of the inconsistencies, the decision was made to conduct an investigation.
They summarized the investigator’s report.
They noted Perez had received an Oral Reprimand in August of 2012 for “3 consecutive
21 shifts called off . . . without sufficient leave to cover.”
Regarding the final incident, they concluded “Perez did not properly report the incident to
23 his supervisor. He completed at minimum 3 more loads and the rest of his shift, fueled and parked
24 the equipment for the day.” They noted that the “Standards of Conduct Accelerated Discipline Rules
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1 #14 states, “Failure to report an on-the-job or job related environmental, safety, or health injury or
2 incident.” They noted Perez never spoke with his supervisor despite confirming he had the appro3 priate phone numbers and capabilities. They noted, as applicable policies, the “[f]alsification of
4 Goldstrike records or documents,” and the “[f]ailure to report an on-the-job or job related environ5 mental, safety, or health injury or incident.” They concluded that Perez’s:
behavior has not exemplified integrity in the workplace. He had every opportunity
to properly report and do the right thing, however he did not. Barrick takes its safety
program very seriously. When there are incidents, they have an impact on everyone
within the division. The employee has not followed company policy or shown ethical
behavior indicating he is not a suitable fit for Barrick Goldstrike.
Later that day, Barrick met with Perez to give him an opportunity to explain the inconsisten-
10 cies. When Perez did not give an explanation, Barrick notified him that he was terminated. Barrick
11 gave Perez a termination letter that stated he was terminated for “fail[ing] to notify your supervisor
12 of an incident that supposedly occurred on 10-31-2017 as required by company policy. Further, as
13 of this time we have not been able to validate your report of the incident.”
Legal Standard governing FMLA Interference Claims
The FMLA provides that “[i]t shall be unlawful for any employer to interfere with, restrain,
16 or deny the exercise of or the attempt to exercise, any right provided under this subchapter” (29
17 U.S.C. §2615(a)(1)), or “to discharge or in any other manner discriminate against any individual for
18 opposing any practice made unlawful by this subchapter” (29 U.S.C. §2615(a)(2)).
Perez argues that he has brought claims under both clauses. The Court finds that he has not
20 done so. Section §2615(a)(2) protects activity taken to oppose practices that are unlawful under the
21 FMLA. Section 2615(a)(1) protects the exercise or attempt to exercise rights provided by the FMLA.
22 Perez does not direct the Court’s attention to allegations within his complaint, nor has he offered
23 any argument within his opposition, suggesting that he opposed an unlawful practice by Barrick.
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Instead, Perez relies upon a Third Circuit decision, Egan v. Delaware River Port Authority,
2 851 F.3d 263, 271 (3d Cir. 2017), to argue that he has brought a “retaliation” claim in addition to an
3 “interference” claim. The argument is irrelevant to whether Perez has brought a retaliation claim
4 pursuant to 2615(a)(2). The “prohibition against interference prohibits an employer from discrimi5 nating or retaliating against an employee or prospective employee for having exercised or attempted
6 to exercise FMLA rights.” 29 C.F.R. §825.220(c) (emphasis added). As indicated by the Ninth
7 Circuit, §825.220(c) “actually pertains to the ‘interference with the exercise of rights’ section of the
8 statute, §2615(a)(1), not the anti-retaliation or anti-discrimination sections, §§ 2615(a)(2) and (b).”
9 Bachelder v. Am. W. Airlines, Inc., 259 F.3d 1112, 1124 (9th Cir. 2001). Noting its agreement with
10 the Ninth Circuit, the Third Circuit, in Egan, “conclude[d] that §825.220(c) is a reasonable interpre11 tation of §2615(a)(1).” 851 F.3d at 271. While the Third Circuit characterized the plaintiff’s
12 §2615(a)(1) claim as a retaliation claim, it recognized that it was a claim brought pursuant to
13 §2616(a)(1) which prohibits interference with the exercise of FLMA rights.
Egan and Bachelder reveal that claims under §2615(a)(1) can be brought pursuant to two
15 different theories of liability: (a) a direct interference with the exercise of a protected right (such as
16 refusing to authorize leave or discouraging the use of leave), and (b) an indirect interference with
17 FMLA rights (such as by considering the exercise of an FMLA right as a negative factor to support
18 an adverse employment action). See Xin Liu v. Amway Corp., 347 F.3d 1125, 1135 (9th Cir. 2003)
19 (recognizing §2615(a)(1) claims for (1) denying and discouraging use of FMLA leave, and mischar20 acterizing FMLA leave, as well as a claim (2) for considering the use of FMLA leave as a negative
21 factor in a decision to terminate the plaintiff). Regardless of whether the latter theory is labeled as
22 a retaliation theory, the Ninth Circuit treats such claims as interference because “[e]mployees are,
23 understandably, less likely to exercise their FMLA leave rights if they can expect to be fired or
24 otherwise disciplined for doing so.” Bachelder, 259 F.3d at 1124.
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To prevail on his §2615(a)(1) claim that Barrick interfered with his right to be reinstated,
2 Perez must demonstrate: (1) he was eligible for FMLA protections; (2) his employer was covered
3 by the FMLA; (3) he was entitled to FMLA benefits; (4) he provided sufficient notice of leave; and
4 (5) Barrick denied Perez the FMLA benefits to which he was entitled. See Escriba v. Foster Poultry
5 Farms, Inc., 743 F.3d 1236, 1243 (9th Cir. 2014); Sanders v. City of Newport, 657 F.3d 772, 778
6 (9thCir. 2011).
Barrick concedes, at least for purposes of the present motion, that only the last factor is at
8 issue. As to whether Barrick denied Perez’s FMLA right to be reinstated, Barrick correctly notes
9 that it could legitimately terminate Perez for reasons unprotected by the FMLA. Such a termination
10 would not violate Perez’s FMLA right to be reinstated.
Although the FMLA created a statutory right to reinstatement after taking
FMLA leave, this right is not without limits. The FMLA is clear on this point: “Nothing in this section shall be construed to entitle any restored employee to ... any right,
benefit, or position of employment other than any right, benefit or position to
which the employee would have been entitled had the employee not taken the leave.”
14 Sanders v. City of Newport, 657 F.3d 772, 778–79 (9th Cir. 2011) (quoting 29 U.S.C. §
15 2614(a)(3)(B)). “An employee has no greater right to reinstatement or to other benefits and condi16 tions of employment than if the employee had been continuously employed during the FMLA leave
17 period.” 29 C.F.R. §825.216(a). However, the “employer must be able to show that an employee
18 would not otherwise have been employed at the time reinstatement is requested in order to deny
19 restoration to employment.” Id. Accordingly, as Barrick is the party moving for summary judgment,
20 and as Barrick will have the burden of proof at trial as the employer, Barrick must establish that no
21 genuine issue of fact remains that it would have otherwise terminated Perez if he had not taken
22 FMLA leave to succeed on its motion.
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Barrick asserts that it had two distinct and legitimate reasons for terminating Perez that were
3 independent of his exercise of his FMLA rights. Barrick argues that it could terminate Perez because
4 it “reasonably believed Perez had misrepresented his injury to Barrick.” Barrick also argues that it
5 terminated Perez for failing to immediately report the incident. Neither of these arguments warrants
6 summary judgment in favor of Barrick.
Misrepresentation of Injury
In asserting that it legitimately terminated Perez for lying about his injury, Barrick argues
9 that it does not need to show that it was objectively correct in concluding Perez lied about his injury.
10 Rather, Barrick argues that it must only show that it honestly believed Perez had lied about his injury.
11 In short, Barrick asserts, it could legitimately fire Perez for lying about his injury, even if Perez was
12 being truthful, “because Barrick thought he was lying.”
The Ninth Circuit has recognized that, under the shifting burden of production framework of
14 McDonnell Douglas of Corp. v. Green, 411 U.S. 792 (1973), an employer’s non-discriminatory rea15 son for taking an adverse employment action is valid if “honestly believed, “even if its reason is
16 ‘foolish or trivial or even baseless.” Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1063 (9th
17 Cir. 2002). While the McDonnell Douglas framework is inapplicable in FMLA cases, see Xin Liu,
18 347 F.3d at 1136 (9th Cir. 2003), the Court assumes that a similar “honest belief” standard would
19 generally apply in determining whether an employer has met its burden of showing that it would
20 have otherwise terminated an employee who has taken FMLA leave as if the employee had not taken
However, Barrick’s argument that it terminated Perez based its “honest belief” that Perez
23 lied about his injury fails precisely because the argument concedes that Barrick terminated Perez for
24 legitimately exercising his right to take FMLA leave.
“The FMLA creates two interrelated,
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1 substantive employee rights: first, the employee has a right to use a certain amount of leave for pro2 tected reasons, and second, the employee has a right to return to his or her job or an equivalent job
3 after using protected leave.” Bachelder, 259 F.3d at 1122 (citing 29 U.S.C. §§ 2612(a), 2614(a)).
4 Protected leave includes leave taken “[b]ecause of a serious health condition that makes the em5 ployee unable to perform the functions of the position of such employee.”
29 U.S.C. §
6 2612(a)(1)(D). However, “[a]n employee who fraudulently obtains FMLA leave from an employer
7 is not protected by FMLA's job restoration or maintenance of health benefits provisions.” 29 C.F.R.
8 § 825.216(d). “Much as it should be obvious that the FMLA is not implicated and does not protect
9 an employee against disciplinary action based upon absences if those absences are not taken for one
10 of the reasons enumerated in the Act, the FMLA is implicated and does protect an employee against
11 disciplinary action based on her absences if those absences are taken for one of the Act's enumerated
12 reasons.” Bachelder, 259 F.3d at 1125 (internal quotes and citations omitted).
The threshold inquiry in determining whether Barrick could terminate Perez for lying about
14 his injury and taking protected leave is whether Perez lied about his injury. If Perez lied about his
15 injury, then the FMLA is not implicated, and Perez was not protected by the FMLA. In such a
16 circumstance, Barrick could permissibly terminate Perez for lying about his injury. Conversely, if
17 Perez did not lie about his injury, the FMLA is implicated, and Perez was protected by the FMLA.
18 In that circumstance, Barrick could not terminate Perez for taking leave, even if it honestly believed
19 Perez was lying about his injury. Barrick’s argument that at least five undisputed facts establish it
20 had an honest belief that Perez lied is irrelevant to the threshold question whether Perez was injured.
21 Barrick has conceded, at least for purposes of this motion, that Perez was injured. Accordingly,
22 Barrick could not permissibly terminate Perez for lying about his injury regardless of whether it
23 honestly formed an incorrect belief that Perez lied.
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Failure to Report the Incident
Barrick argues that it had an additional permissible reason to terminate Perez: he failed to
3 immediately report the incident. However, assuming Barrick could terminate Perez for failing to
4 report the incident, its own evidence (and arguments) showing that it terminated Perez for lying
5 about his injury create a genuine issue of fact whether Barrick terminated Perez for failing to report
6 the incident.
Retaliatory discharge in violation of public policy.
Barrick is not entitled to summary judgment on Perez’s common law claim for retaliatory
9 discharge for the same reasons that it is not entitled to summary judgment on Perez’s FMLA claim.
10 To succeed on his tortious discharge claim, Perez must establish that he was discharged for engaging
11 in conduct protected by strong public policy. Perez did engage in such protected conduct; he took
12 FMLA leave because he had sustained an injury precluding him from performing his job. As such,
13 an issue of fact exists whether Barrick terminated Perez for engaging in conduct protected by a
14 strong public policy. Barrick is not entitled to summary judgment on Perez’s state law claim for
15 retaliatory discharge.
Therefore, for good cause shown,
THE COURT ORDERS that Defendant Barrick Goldstrike Mines, Inc.’s Motion for Sum-
18 mary Judgment (ECF No. 29) is DENIED.
DATED THIS 7th day of September, 2021
Robert C. Jones
United States District Judge
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