Xin Liu v. Amway Corporation Does 1-50 Inclusive

supervisor granted summary judgment was not for on at most that his USPS gesting discipline paper- Leong’s in her Title claims. very thorough VII work. AFFIRMED. contends that

Leong further its discretion re district court abused an adverse inference be fusing to draw produce page unable to cause USPS was his supervisor’s report of his about one Leong argues that such an termination. allow his claim to survive inference would summary judgment. The district court LIU, Plaintiff-Appellant, XIN Leong’s granted USPS’s motion to strike inference because it request for an adverse CORPORATION; AMWAY Does 1-50 supplemental in a brief that was

was made Inclusive, Defendants-Appellees. late, Leong did over-length and filed supplemental not seek leave to file No. 01-57013. court did not abuse its brief. The district Appeals, United States Court of by enforcing proce the court’s discretion Ninth Circuit. dural rules. if it The district court stated even Argued and Submitted Oct. Leong’s supplemental to consider

were Filed Oct. brief, an adverse inference would not be justified because the Postal Service’s rea- terminating Leong for were well-doc-

sons and there is no reason to believe umented contain missing page that the would contrary information. The district court in this determi-

did not abuse its discretion nation.

IY. CONCLUSION to exhaust his administra- Leong failed claim, disability tive remedies for his even counsel, obtaining and the district after disability his properly court dismissed ground. claim this prima Leong is unable demonstrate facie case of discrimination under Title VII similarly situ-

because he cannot show employees ated were treated more favor- Furthermore, ably than he was treated. provide evidence that he is unable terminating him was a USPS’s reason Leong’s pretext for discrimination. Given failure to show evidence of record and his discrimination, properly the district court

PREGERSON, J., opinion delivered the I, IIA, IIB, IIC, of the as to Court Parts McKEOWN, J., joined. and III in which RYMER, J., opinion delivered the of the IID, in Court as to Part which McKEOWN, J., PREGERSON, joined. J., dissenting filed a opinion as to Part RYMER, J., opinion IID. filed an I, IIC, III, concurring as to Parts dissenting as to Parts IIA and IIB.

OPINION

PREGERSON, Judge, Circuit McKEOWN, Judge, joins. whom Circuit Xin Liu appeals the district court’s summary judgment in favor of her for- employer, mer Amway Corporation,1 on her claims of sex discrimination and retali- ation Rights under Title VII of the Civil Act, (2003), §§ 42 U.S.C. 2000e—2000e-17 Employment and the California Fair and (FEHA), Act Housing Cal. Gov’t Code 12900-12996; §§ pro- interference with Family tected leave under the and Medical (FMLA), 2612(a), Leave Act 29 U.S.C. counterpart, and its state the California (CFRA), Family Rights Act Cal. Gov’t 12945.2(a); implied-in- Code breach of good fact contract and covenant of faith dealing; and fair and violation of Califor- public policy. nia The district court held Keramati, Ray Legal Group, Western genuine that Liu of failed raise issue APC, CA, Diego, plaintiff- San for the Amway’s fact as to rea- material whether appellant. for terminating pretextual sons her were Aarvig, Aarvig, Maria K. Creason & and, therefore, granted Amway summary LLP, defendant-appellee. for the judgment on Liu’s retaliation and discrimi- FEHA.

nation claims under Title VII and addition, In the district court held that Amway had not interfered Liu’s Liu on leave because FMLA/CFRA she was terminated. when PREGERSON, RYMER, remaining Before and court also her claims dismissed McKEOWN, Judges. grounds. on various state Circuit opinion. Amway throughout now this Defendant named Alticor. "Amway” We refer to the defendant as September on 19th. returning to work grant court’s of the district reverse

We Liu, her that FMLA, reminded According Tran on Liu’s summary judgment to work get her to back and public expected he CFRA, of California and violation holding projects” for had “been affirm the district that he claims. We policy experi- that she had summary judgment responded of her. court’s fatigue and and felt fainting spells contract implied-in-fact her enced of breach to recover from good faith needed more time claim, of the covenant she breach “you claim, allegedly replied and Title VII and Tran dealing childbirth. and fair you '.... need yet [w]e discrimination die can’t FEHA retaliation commit to court projects” to the district insisted We remand claims. requested then accordance with return She specific date. proceedings for further until De- return date an extension opinion. request immedi- Tran denied her cember. 1. BACKGROUND that she needed ately. again He stated holding he was the first return to work because May Xin Liu was In Develop- for her. projects hired the Concentrate scientist Division the Nutrilite Department ment Sep- scheduled About a week before her (“the Depart- Corporation date, Liu and husband tember return ment”). experienced the most She was birthday par- attend a her office to visited consisting of her department member of introduce their ty for a co-worker and primary duties were four scientists. Her employees. her fellow baby to newborn plant con- development the research Tran asked her During birthday party, centrates. where he demand- to meet him his office David supervisor, In Liu’s October return provide a firm date. ed that she Groh, department, of the group leader of her requested an extension again She re- He was left the Nutrilite division. my to from until “recover leave December Tran who then became placed by Kha my baby.” and bond with He pregnancy supervisor. ultimately agreed request but denied the to November to a shorter extension 27,1998, maternity Liu On June went that af- indicate 1998. Personnel records early baby in leave. She her delivered Tran transferred Liu meeting, ter return date August expected and set her personal to a pregnancy from status leave she was on September 1998. While leave absence. for her leave, responsibility Tran assumed he claimed that deposition, work. In his October, beginning of Liu Around the evenings and some- he was forced to work provide to need- to travel to China decided the slack and “pick up to times weekends ill terminally father to ed care for her time.” job and at the same her mine do[ ] caring bonding for and with her continue spent he 30% of his He estimated that again Tran telephoned She newborn. He stated that he doing time Liu’s work. extension until December. He ask for an to have her return. was anxious again him several refused. She contacted times, asking for extensions.2 He shorter a weeks early September In few contacted the Human return, refused. Liu then Liu was Tran before scheduled explained her Department and Resources to ask whether she would telephoned her once. extend her at least dispute nied to Though the number of 2. Tran and Liu extensions, he admits he de- he denied times told that a member of very good situation. She was scientist with written communi- department speak would to Tran. A cation skills. in department Scores her later, days give Tran called Liu to her few ranged 3.1, from making 2.8 to Liu’s score until a one-week extension November highest one of the two in department a four. Groh testified that he could not recall criticizing ever her work either to her di- September the end of Around rectly or to supervisor. other October, beginning of Tran was informed company experiencing that the would be a October, Around the third week of depart- reduction-in-force and that Liu’s decision to terminate Liu was made. Rob- merging ment would be with another. He Dykehouse had primary responsibility position was told that at least one in the deciding which employee would be ter- department would Tran be eliminated. so, In doing minated. she relied on the employees and two other were the central overall score and verbal recommendations decision makers as to who would elimi- given by division supervisors. According nated. Dykehouse, Tran characterized Liu as mid-October, shortly In before Liu had the weakest his group and recom- China, planned to requested Tran mended her for termination. that she visit company to review her 17, 1998, On October Liu left for China. performance annual evaluation. At Upon 18, 1998, her return on November meeting, Tran Liu informed that he was Tran told her she had been terminated. reassigning her primary project to another Liu only was the involuntarily scientist employee. He further mentioned that the terminated from her only division. The company downsizing. gave was He then other position scientist whose was elimi- performance evaluation. Her nated in the downsizing was reassigned 2.52, overall score drop 19% instead of eliminated. the over-all score she had received six months earlier. Liu brought this action in the District Court for the District Southern of Califor- placed Liu’s score her at the bottom April nia in The case was trans- department. gave Tran her the lowest ferred to the Central District of California score, “one,” possible catego- several (Eastern Division) Amway’s on motion. including communication, ries written Liu filed a Complaint Second Amended in category which she had excelled September moved for sum- previous evaluation. He also her a gave mary judgment every “one” in several on “soft skills” such as “en- cause of action. courages self-development” argument The court heard in September “holds people meeting goals.”3 accountable for 1, 2001, 2001. On October the district During year the entire Tran did granted summary judgment court in favor give single employee “one” to a other of Amway appeals. on all claims. Liu than Liu. II. DISCUSSION prior evaluation under her former Groh, grant

supervisor, summary judg We review very positive. David was gave very scores, overall, He ment high Diego de novo. Weiner v. San 3.1 (9th Cir.2000). 1025, 1028 and remarked that she was an County, excellent 210 F.3d explained deposition English 3. Tran in his that "soft members.” Because Liu's skills were taught.” skills” are skills that "cannot be lacking shy,” and she was "a little she did not They apparently require just “being upbeat” possess according these skills to Tran. understanding "what motivates team job security and provides The FMLA by the same standard governed areWe employees who need Parker v. United entitlements for trial court. leave by the used (9th Cir.1997). States, personal for to take absences work determine, viewing reasons, the evidence their to care for newborn must medical We nonmov- to the babies, family most favorable light in the or to care for members any genuine “there are § The ing party, whether illnesses. U.S.C. serious fact and whether material issues of to employees qualifying FMLA entitles correctly applied the relevant district court up for to 12 weeks each unpaid take Smith, 203 Lopez v. law.” substantive for the they have worked year provided banc). Cir.2000) (en 1122, 1131 12 months.5 29 for covered 2612(a). § U.S.C. AND MEDICAL A. FAMILY interre FMLA creates two The AND THE CALI- LEAVE ACT rights employees. lated substantive RIGHTS ACT FAMILY FORNIA Airlines, Inc., v. America West Bachelder that Liu was dispute do not parties The (9th Cir.2001). First, 1112, 1122 the FMLA unpaid leave under entitled to up take to right has the employee an CFRA, after her counterpart, and its state de of leave for the reasons twelve weeks disability expired.4 pregnancy 2612(a). § Sec scribed above. U.S.C. months to a maximum of four entitled ond, takes FMLA leave employee an who disability leave under FEHA. pregnancy to his or her right to be restored has the then § 12945. She was Cal. Gov’t Code position equivalent or to a original position of leave to an additional weeks entitled benefits, employ pay, and conditions or a close baby for her or herself to care return from leave. U.S.C. upon ment under the a serious illness relative with 2614(a). § FMLA does not entitle CFRA, 2612(a), FMLA, § 29 U.S.C. benefits, posi any rights, 12945.2(a). Pregnancy § Cal. Gov’t Code been entitled they tions would not have FEHA a distinct disability leave under they not taken leave. 29 U.S.C. had granted entitlement to that and additional 2614(a)(3)(B). simply guarantees It Regs. tit. and CFRA. CahCode FMLA not result employee’s taking leave will (2003). 7297.6(a) 2, § job security or in other adverse in a loss of tri- whether there is a We must decide actions. pro- fact as to whether Liu’s issue of able prohib- protect employee, To were rights to take FMLA leave tected exercise of the interference with the its find that a triable by Amway. We violated employee’s right to take leave. U.S.C. exists and reverse district issue of fact 2615(a). provision reads The relevant summary judgment court’s to any employer for shall be unlawful “[i]t claims. Liu’s FMLA/CFRA cussing only CFRA and FMLA adopts language FMLAbecause of 4. Since CFRA 'd, identical”), "substantively have held and California state courts 343 FMLA are aff to apply, Cir.2003). we refer (9th that the same standards 1179 only of this leave for the remainder FMLA understanding opinion that CFRA with the requirements for sets out certain 5. The FMLA Dudley Dep't See leave is also included. to period employee must have worked an 255, 261, Cal.App.4th Cal. Transp., 108 90 § These qualify 29 U.S.C. for leave. (2001); Pang BeverlyHospital, Rptr.2d 739 op- The requirements not at issue here. are 986, 993, Cal.Rptr.2d Cal.App.4th agree to posing parties Liu was entitled both France, (2000); Moreau v. Air cf. FMLAleave. Mar.25, 2002) (dis (N.D.Cal. WL *1

H33 with, restrain, leave, deny the exer- to authorize FMLA interfere but discouraging exercise, attempt of or the to an from using cise such leave.” Id. right provided regulations specify under this title sub- The [and one form of em- 2615(a)(1). i.e., § chapter].” ployer 29 U.S.C. “employers can- interference — taking not use the of FMLA leave aas Congress has authorized the De negative factor in employment actions.” (“DOL”) imple of Labor to issue partment 825.220(c). § 29 C.F.R. menting regulations for the FMLA. 29 Liu argues Amway with, that interfered § regulations 2654. These U.S.C. are en discouraged and denied her rights, FMLA USA, titled to deference under Chevron prohibited by 2615(a)(1), § U.S.C. Inc. v. Natural Resources Coun Defense (1) denying and mischaracterizing cil, Inc., 837, 843-44, 467 U.S. 104 S.Ct. (2) FMLA leave6 using protected (1984). Bachelder, 81 L.Ed.2d 694 FMLA leave as a factor in its decision to regulations 259 F.3d at 1123 n. 9. DOL terminate her.7 prohibits state that FMLA interfer “[t]he employee’s rights ence with an under the Discouragement 1. Denial and 825.220(a). § Any law.” 29 C.F.R. viola Leave tion of the FMLA itself or of the DOL regulations argues constitute interference an that right denied her (a) employee’s rights under 29 to FMLA by rejecting FMLA. leave her re- 825.220(b). § interprets quests C.F.R. DOL for additional by forcing only “interference” to include refusing “not her to take shorter extensions of additional likely 6. The district court reasoned that this inter- be determining liqui- relevant when damages prevail ference claim was dated irrelevant because there should Liu on her Bachelder, damages generally are no actual to claim. attached it. The See only provides (explaining compensatory employer may FMLA for that dam- ages liquidated damages, punitive damages. and not liable for 29 U.S.C. "unless it can Thus, 2617(a). prove good § that it undertook in faith the district court conclud- the con- ed, duct that violated prior the Act and that it had because Liu was terminated to the leave, grounds believing reasonable for ac- expiration [its of her reduced amount of (internal tion] was not a violation the Act” any damages being she did not sustain omitted)). quotations repeated Liu's leave re- having denied leave or her leave mischarac- quests and involvement of the Human Re- personal terized as leave. Department weigh against arguments sources Though question we need not reach the good by Amway. faith damages stage, only at this we note that liabil ity portion may as to this of the claim result in We note that some circuits have invoked damages. provides damages The FMLA 2615(a)(2) § in cases similar to Liu’s where equal wages, salary to the amount of plaintiff subjected to an adverse em- employment benefits. U.S.C. ployment taking protected action for 2617(a)(1)(A). Depending Amway’s § poli circuit, however, leave. In this we have cies, 2615(a)(2) because Liu’s leave was characterized as clearly applies determined that leave, personal may have lost only employees oppose employer prac- who FMLA, whereas, gener benefits to which she was entitled. See tices made unlawful Bell, ally 2615(a)(1) Pallas v. applies employees simply who Pacific 1991) (finding consequence 1326-27 Cir. take FMLA leave and as a are temporary disability subjected who credits employ- toward actions unlawful Bachelder, pregnan retirement benefits must also credit er. 259 F.3d at 1124. For exam- cy 2615(a)(2) personal ples related leave application § but need not credit the of of to this leave), denied, 1050, claim, type Family cert. 502 U.S. 112 S.Ct. see O'Connor v. PCA 916, (1992). Inc., Plan, (11th 116 L.Ed.2d 815 Health 200 F.3d Further, Cir.2000), repeated the Hodgens Dynamics interference with and and v. General (1st Cir.1998). Corp., mischaracterization of her FMLA leave will 159-60 issue of fact as genuine presented take it (b) mischaracterizing her leave and under employee’s rights leave.8 the personal to whether leave as protected FMLA denied). and the The statute FMLA were (a) of Extensions Denial an em- regulations protect accompanying deny by repeatedly that actions that any employer claims Liu from ployee requir and right for extensions to requests the ing discourage her interfere with or time, Amway 825.220(1). her § reduce leave ing her to leave. 29 C.F.R. take FMLA under FMLA. rights her with interfered on sum- the court The evidence before of wheth- regardless argues that Amway clear inter- mary judgment demonstrates extensions, her actually granted er Tran rights take FMLA with Liu’s to ference amount of the entire fact received Liu in that that he believed Tran admits leave. she was still requested because leave she and so discretion on the matter he had she was terminated. when on leave repeated- her extensions grant refused to argument persua- this found district court to under was entitled ly —extensions irrelevant it that held that was sive and to reduce her Liu pressured FMLA. Tran several occa- Liu leave on Tran denied time, her from us- discouraging thus leave sions. ing her FMLA leave. recently recog- Supreme Court As the grant district the court’s We reverse respond to nized, was enacted FMLA the portion of Liu’s summary judgment on “ with the discre- problem to ‘serious the is- There is a triable interference claim. ” that oc- family leave’ tionary nature Amway to of material fact as whether sue authority to leave ‘the curs “when denying rights by interfered length of that leave arrange and to leave. her use of FMLA discouraging and ” supervisors.’ Neva- with individual rests Hibbs, Human Resources Dep’t da (b) of FMLA Mischaracterization 1972, 1980, -, 123 S.Ct. 538 U.S. Leave (2003) H.R.Rep. (quoting 155 L.Ed.2d employer’s responsibility It is (1993)). 103-8, 2, pp. 10-11 pt. No. appro to when determine clearly regulations state DOL facts to inquire specific to as to priate, with an em employer interferes that an determination, inform make that by “refusing rights under FMLA ployee’s of his or her entitlements. employee “discourag FMLA leave” to authorize Co., 275 F.3d Gas Bailey v. Southwest using leave.” from such employee ing an Cir.2002). regula DOL that an It follows 825.220. C.F.R. employee need tions state “[t]he that employee discouraged has the FMLA expressly rights under assert leave when his taking FMLA FMLA, may only but or even mention length interferes with supervisor 29 C.F.R. is needed.” state leave, denying leave including out dates of 825.302(c). See, Shenango, e.g., Williams right. informed hand, duly (W.D.Pa. Liu In the case F.Supp. 320-21 leave. It was Tran the reasons for her 1997) denials of (holding periodic to deter- duty procedure to initiate his limitations on requests and FMLA leave qualified for FMLA mine whether she allowed week which as "retali- her interference claim mistakenly failed misidentifies that Liu claims under ation” and "discrimination” claim under FMLA in raise an "interference” claim Complaint. simply FMLA. Amended Second Liu Amway’s leave. even contacted taking Hu- leave she had statutory right to Department man Resources directly to ex- take. Tran clearly believed that it was plain her situation. The department took within his deny discretion to leave because no action to determine whether Liu was the leave “personal.” was Had Liu’s leave entitled to FMLA leave. been appropriately designated FMLA leave, Tran would not have had such dis-

An employer’s good faith or lack of Hibbs, cretion. generally See 538 U.S. at knowledge that its conduct violates FMLA -, 123 S.Ct. at 1980 (discussing one of does not protect it from liability. Bacheld the aims of FMLA as eliminating the dis- er, 259 F.3d at 1130. Amway was respon cretion supervisors individual had in grant- sible for properly identifying Liu’s FMLA leave). ing family FMLA baby leave for leave. Both Tran and the Human Re bonding time is contingent upon an sources Department failed to fulfill their employer’s E.g., needs. Blohm v. required duties to Liu as Dil- by the FMLA. lard’s 95 F.Supp.2d 478-79 Although Amway concedes that (E.D.N.C.2000) (rejecting argument an Liu’s FMLA qualifying leave was misiden employer that the employee should have leave, personal tified as argues it that Liu scheduled their FMLA leave around the was not ultimately rights denied under needs of corporation). FMLA because practical there was no dis tinction personal between the leave she We conclude that presented Liu a tri- granted and the FMLA leave to which able issue of fact as to whether rights she was entitled. The district court under FMLA were violated the mis- agreed, holding that the classification of identification of her FMLA leave as per- Liu’s leave was irrelevant. sonal leave. FMLA enforcement mecha- protect nisms employees against having to The district court erred. Under plead negotiate supervisors with their regulations, DOL the mischaracterization granted to be they leave are entitled to of Liu’s FMLA personal leave as receive under both FMLA and CFRA. We qualifies as “interference” with her leave. reverse the district court on this issue. A violation of the simply requires employer deny employee’s 2. Use of FMLA Leave as a Factor entitlement to FMLA leave. 29 C.F.R. in Liu’s Termination 825.220(a)(1) (b).9 § & employer here failed in its responsibility to assess Liu’s alleges also that Amway entitlement to FMLA leave and therefore impermissibly used her FMLA leave as a denied her a right substantive under factor in the decision to terminate her. FMLA. Denial of right Liu’s to FMLA employee alleges Where an that his or her leave constitutes a violation of the FMLA. FMLA impermissibly leave is considered

Further, the decision her, to terminate him designation of or Liu’s personal leave as this Circuit deprived applies her of standard set forth rights By 825.220(c). under FMLA. designating § the DOL in 29 CFR Ba leave as “personal,” chelder, subject she was Thus, 259 F.3d at 1124-25. control trial, and discretion of supervisor employee may prevail on a claim 825.220(a)(1) 9. Section reads "[a]ny "[a]n reads violations of the Act or of these with, prohibited interfering restrain- regulations with, interfering constitute re- ing, (or denying or attempts the exercise of straining, denying rights the exercise of exercise) any rights provided by the Act.” 29 provided by 825.220(b). the Act.” 29 C.F.R. 825.220(a)(1). 825.220(b) C.F.R. Section 825.220(a)(1). Bachelder, 259 interfered with her 29 C.F.R. employer that an in terminating her violation rights by F.3d at 1124: showing, by FMLA contrast, employee pun In an is where of the evidence that by preponderance a by practices for opposing ished unlawful FMLA-protected taking one employer, the the issue then becomes factor the deci- negative a in constituted discrimination In and retaliation. Id.10 prove can her. She sion to terminate by a similar made the Sev determination claim, ordinary might any as one this Wayne Corp., Circuit in Diaz v. Fort enth claim, using direct or statutory by either (7th Cir.1997), the court ex evidence, or both. circumstantial “do plained depend that FMLA claims not Therefore, question the us Id. at 1125. not discrimination” since the issue is on from the district court’s appeal on employee “the one employer that treated is is whether there summary judgment every that em worse than another” but fact to whether of material triable issue rights under ployee has substantive by imper- the leave taken was FMLA must employer respect. FMLA that the a factor in her ter- missibly considered as Id. 712. mination. correct apply the standard We Here, court erred the district presented and find that Liu has forth in McDon analysis the set applying Green, jury that Corp. from which a could conclude Douglas nell U.S. (1973), 1817, 36 L.Ed.2d 668 into Tran took the fact that she took leave S.Ct. qualified FMLA claim giving account in her a low score on her the decision terminate her. influenced recommending her for term evaluation applied circuits have the While other ination.11 Douglas framework to FMLA McDonnell subjec Liu’s evidence that Tran’s Circuit, cases, this almost two termination central, if not tive evaluation served as the ruling in the district court’s months before sole, signific in factor her termination is case, apply declined to this explicitly rely ant.12 Where termination decisions Bachelder, 259 F.3d at 1125. framework. subjective evaluations, analysis careful on statutory regulatory We held possible impermissible motivations is of FMLA makes clear that where language are warranted because such evaluations con subjected “negative employee particularly “susceptible of abuse ... because he has used sequences simply leave,” likely pretext.” more to mask employer Weldon FMLA has interfered Cir.1990) (3d Kraft, employee’s rights under judgment accept a in court reserved on will not reduction force as This has 10. analysis Douglas conclusory explanation employee’s ter- for the whether McDonnell Hodgens, applicable ac See 144 F.3d at 167-68 be in an anti-retaliation mination. would Bachelder, 2615(a)(2). (holding that where an takes FMLA tion under leave and is terminated in reduction at 1125 . force, legitimate presented selection criteria Amway argues that because Liu was termi- will insulate lia- it from legitimate bility). nated in the context of reduction force, liability no there can be under Depositions employees two This is incorrect. Termination within of the other FMLA. cen- does not the termination task force reveal that the context of reduction force liability employees tral as to which would the defendant from for violat- determinant insulate ing plaintiff cur- alleges Where a that she from each division was the FMLA. eliminated reasons, performed supervisor. their unlawful courts rent evaluation terminated for (internal omitted); citation Lujan see also We thus conclude there is a triable issue (10th Walters, 1051, 813 F.2d 1057 Cir. of material fact whether consid- 1987) (noting “subjective that criteria ered qualified Liu’s FMLA leave as fac- ‘dedicated’ and ‘enthusiasm’ offer a may tor termination, in her causing thus inter- pretext giving convenient for force and rights ference with her under FMLA. prejudice, effect to and can strong create discrimination”). employment B.

inference PUBLIC POLICY Here, were, Liu’s lowest scores as Tran law, California employ Under explained, in “soft skills” that “cannot be ment is at-will unless parties the contract taught,” such as “being upbeat.” juryA otherwise. See Cal. Lab.Code could categories find these vague enough courts, however, California have carved to be suspect given the surrounding out a specific exception general to this events. rule: an will be liable if it termi drop 19% in overall score from her nates an employee in violation of public former employee evaluation may also cre policy. Court, See Stevenson v. Superior ate an impermissible inference of motiva 880, 16 Cal.4th 66 Cal.Rptr.2d 888, 941 tion. See Winarto Toshiba Am. Elecs. (1997). P.2d 1157 1276, 1286 Components, Stevenson established a set of re Cir.2001) (holding that “[a]n unwarranted quirements policy that a satisfy must performance reduction review scores support a discharge tortious claim. can constitute of pretext in retali First, policy the must supported by be VII), ation cases” under Title cert. dis either constitutional or statutory provi- missed, 1098, 816, 537 U.S. 123 S.Ct. 154 Second, sions. the policy must be “pub- (2003); L.Ed.2d 766 144 Hodgens, cf. lic” in the sense that it “inures to the at 170-171 (holding that prior bad benefit of the public” rather than serv- performance year over two span in evalua ing the merely interests of the individu- support tions weakened allegation for that Third, al. policy the must have been employee’s the termination was in violation at the time of discharge. articulated the FMLA). Fourth, policy the must be “fundamen- evidence, This combined with Tran’s be- tal” and “substantial.” havior regarding toward Liu her 889-90, 888, Id. at Cal.Rptr.2d 66 941 P.2d suggests that may evaluation have 1157; Insurance, see Gantt v. Sentry also been tainted with his attitude towards 1083, 1095, 1 Cal.4th 4 Cal.Rptr.2d repeated leave. His denials of her leave (1992), 824 P.2d 680 overruled on other and comments about his increased work- grounds by Co., Green v. Ralee Eng’g load support Finally, contention. 66, 90, Cal.4th Cal.Rptr.2d 960 P.2d proximity time between the (1998).13 her termination provides also supporting evidence of a connection Discharge between two violation of events. Hodgens, held, 144 F.3d at (holding law, CFRA has been as a matter of that temporal “close proximity wrongful to constitute discharge be- in viola tween may two events give to an tion of public policy. rise See Nelson v. United connection.”). of causal inference Technologies, 597, 612, 74 Cal.App.4th expanded require- Green the first statutorily Stevenson elude authorized administrative policy supported regulations. ment—that either 19 Cal.4th at 80 n. 78 Cal. statutory provisions constitutional or Rptr.2d in- P.2d 1046. —-to Moreau, ability terminate Amway’s (1999); also see Cal.Rptr.2d any time. its federal at *8. As 2002 WL also violation counterpart, Further, if could demonstrate even Liu public policy. a violation constitute must to terminate required Amway was held cause, issue of have a triable courts there is California good Thus, because termi- in force constitutes reduction as to whether fact valid material See, and v. the FMLA e.g., of Clutterham “good violation nated in cause.” also be Indus., Cal.App.3d must summary judgment 169 CFRA, Coachmen (1985). of whether 1226, 795 question 1223, Cal.Rptr. 215 on denied policy. public sug- to in the record violated termination There is no was in force Amway’s reduction gest that IMPLIED-IN- OF BREACH C. invalid. COVE- AND CONTRACT FACT good of Finally, covenant AND FAITH GOOD OF NANT fails, be dealing claim also fair faith and DEALING FAIR sup terms are no cause contract there Amway breached argues that Interac Foley See the covenant. port she would contract implied-in-fact an 654, 690, 254 Corp., 47 Cal.3d Data tive alleges She for cause. only terminated (1988). 211, P.2d 373 Cal.Rptr. and disciplinary its to follow Amway failed the district affirm we Consequently, in its as set forth procedures termination on summary judgment of court’s grant handbook. and in fact contract implied of Liu’s breach at-will presumes law California dealing and good faith fair covenant do not terms contract where employment claims. Nat’l, v. Bechtel Guz otherwise. specify 335, 317, Cal.Rptr.2d Inc., 24 Cal.4th RYMER, Judge, with whom Circuit (2000) (analyzing Cal. P.3d joins. McKEOWN, Judge, Circuit 2922). California While Lab.Code RETALI- AND FEHA D. VII TITLE such as look factors courts will AND DISCRIMINATION ATION service, and longevity of policies, personnel claims whatever Liu abandoned in de employment continued assurances and under VII may have had Title conduct employer’s termining whether them issues failing FEHA raise contract,” implied-in-fact “gave rise to to them respect with argument any make interpret not to careful they been have 341-42, City Collins brief. See opening in her Id. liberally. at too such factors Cir. Diego, 841 Fur San 8 P.3d Cal.Rptr.2d 1988). court’s the district Accordingly, language contract ther, explicit at-will and to Liu’s Title VII judgment stands as account, with all along taken into “must be evidence, ascertaining FEHA claims. pertinent other was em a worker on which the terms III. CONCLUSION 352, 8 Cal.Rptr.2d Id.

ployed.” P.3d 1089. court’s the district REVERSE We FMLA, judgment on Liu’s summary employment term of

Liu’s short AF- and CFRA, public policy claims con- provisions at-will explicit as to decision district court’s FIRM the and em- letter tained in and covenant of contract Liu’s breach implied- that no suggest ployee handbook claims, and dealing and fair good faith limited created that in-fact contract Discrimination Title and FEHA retaliation and dis- VII crimination claims. Title it VII makes an “unlawful employ ment practice” for an employer to discrim part, AFFIRMED in REVERSED against inate an employee “because of’ part, and REMANDED. sex, race or protected other character 2000e-2(a)(1). istic. 42 U.S.C. PREGERSON, Judge, Circuit Pregnancy Act, Discrimination a 1978 dissenting part. VII, amendment to Title explicitly states that sex discrimination includes discrimi I majority’s opinion dissent against nation individuals “because of Liu’s Title and FEHA VII retaliation and pregnancy” or who are by preg “affected because, discrimination claims as I read nancy” child-birth. 42 U.S.C. case, the record and in briefs there is 2000e(k). appealed no doubt that Liu the district Because sex discrimination includes dis ruling dismissing court’s those claims. Be- crimination based on pregnancy, adverse cause I that ruling believe the was incor- employment actions that occur as a result rect, I would reverse the district court’s employee of the taking FMLA protected order dismissing Liu’s Title and VII squarely leave fall inside the bounds of FEHA claims. The district granted court prohibitions. Title VII Sex discrimination summary judgment for on all of that by denying occurs or discouraging analyzed Liu’s claims and together. them leave is central to the remedial aim of the By noticing appeal of the entire dis- FMLA. Dep’t Nevada Human Res. v. order, trict court’s appeal Liu’s notice of of Hibbs, 721, -, 1972, 588 U.S. 123 S.Ct. preserved her Title and FEHA VII claims. 1978, (2003) (“The 155 L.Ed.2d 953 opening Her brief contrasts the standard protect right aims to to be free from of for review her Title and FEHA VII gender-based discrimination in the work applicable claims standard for her place.”). FMLA, In enacting the Con and, though other claims not citing Title gress recognized that the lack of uniformi and statutory provisions, VII’s FEHA’s ty concerning policies in “an resulted analyzes her claims under Title VII and environment where[sex] discrimination is pages FEHA on argues 36-48. She that rampant.” Id. at 1980 (quoting 1987 Sen Amway violated Title VII and FEHA (testimo ate Hearings, pt. Labor at 170 discriminating against her on the basis of Montes, ny Peggy Mayor’s Commission pregnancy sex and by retaliating Affairs, City on Women’s Chicago)). against complained her when she about Tran’s refusal to grant her leave.1 I would allegation that Amway intentional- reverse the district court’s of sum- ly against discriminated her should be mary judgment on those claims.2 disparate treated as a treatment claim un- 1. Sex discrimination claims under Title VII failing 2. The district court erred to distin guish between Liu's retaliation and discrimi FEHA are decided under the same stan- nation claims. Even where both Mateo, claims are City dard. See Brooks v. San analyzed Douglas under the McDonnell bur (9th Cir.2000) (explaining that test, shifting subject den each is to different plaintiff alleges when a sex discrimination requirements prima to make out a facie case FEHA, only under Title VII and the we need necessary pre and different evidence to rebut assess her claim under federal law because Bergene Project Agric. text. v. Salt River Im operate Title VII and FEHA under the same Dist., provement and Power 272 F.3d guiding principles). (9th Cir.2001). alter Costa, recently clarified we In Sischo-Nownejad v. Merced Title VII.

der 1991,5 plain- “the in was amended Dist., Title VII Cmty. Coll. a may establish case alleges that Title VII Cir.1991). any tiff in Specifically, of the discriminatory ani- through preponderance violation motivated Tran was circumstantial) (whether on her a low score direct gave evidence he mus when played recommended characteristic protected evaluation that a ” in Amway’s employ- reduction an adverse factor’ ‘motivating termination for F.3d at process. force 853-54. ment action.6 an affirmative assert may then employer them as identified has Though she if the remedies “limits defense in her allegations treat such,3 I would have would that it demonstrates supporting and the complaint ” ab- the ‘same decision’ made nonetheless motion Amway’s opposition presented impermissible consideration sent make what out summary judgment Costa, (analyz- at 847-48 299 F.3d factor. “mixed- traditionally labeled have we 2000e-5(a)(2)(B)). Howev- ing U.S.C. motive case.”4 prac- motivating factor for plaintiff intends to theory on which 3. The tice, also motivated though other factors even at the outset of not identified rely is often Palace, Rights Title practice.” Act Civil v. Desert Costa case. (as banc) 2000e-2(m) Cir.2002) (en ("As 701, VII, § the 838, (9th § 42 U.S.C. 856 observed, 1991, not a case Pub.L. Rights has need Act of Supreme Court Civil amended the outset. 102-166, 107(a), at or labeled 1071 § Stat. be 105 characterized No. emerge Rather, dis shape often after will the (1991)). -, trial.”), aff'd, at covery even or U.S. (2003); 2148, Wash 84 156 L.Ed.2d S.Ct. 123 re appears to have Supreme Court 6.The 1421, (9th Garrett, 1432 10 F.3d ington v. 2000e-2(m) § whether judgment on served Cir.1993) disparate (recognizing treatment Palace, single case. Desert motive applies in specify par a though complaint did not claim 1, at 2151 n. 1 123 S.Ct. - U.S. at -n. discrimination); Sischo- theory of ticular decide ("[T]his require us to case does ("A plaintiff at 1110 n. 8 Nownejad, F.2d 934 2000e-2(m)] when, ever, § § U.S.C. [42 107 if single a motive between not choose need con motive of the mixed applies outside beginning the theory of the at mixed motive circuit, However, text.”). we have in this fact, identify rarely case”). plaintiff will In a "[Hollowing amend that the concluded summary judgment. early theory as as the ments, as mixed- characterizing the evidence Hopkins, U.S. Waterhouse See Price only single results motive instead of motive 104 L.Ed.2d 109 S.Ct. n. defense, availability a differ a different of the (1989) ("Indeed, expect plaintiffs that we statutory directly the which derives ence alternative, their allege, in the that often will Costa, F.3d at 856. text.” single motive].... [mixed cases both are course, of point proceedings, in the At question some the of only court to encounter par decide a whether Court must 2000e-2(m) the District single-mo applies to § whether motives.”). involves mixed ticular case interpreted Palace has cases after Desert tive 2000e-2(m) applying to sin necessarily case, alleges plaintiff a motive 4. In mixed Stores, gle cases. Dare Wal-Mart motive one discriminatory appears factor that (D.Minn. 990-92 F.Supp.2d motivating the adverse considerations 2003). explained, “eval in Dare As the court case, single motive employment action. In the McDon single-motive claims under uating only reason alleges it was the plaintiff burden-shifting inevita scheme Douglas nell Sischo-Nownejad, 934 action. See for the a classic leads to bly paradoxically at 1109. process dic [T]he scenario.... mixed-motive Rights [in of 1991 by the Civil Act reads, tated provision "an unlawful 5. The relevant analy 2000e-2(m) useful than ] more is practice established when Douglas.” Id. race, at required by McDonnell sis party complaining demonstrates sex, color, origin was a religion, national er, only Amway’s this defense is available “with decision to terminate her. Tran’s remedies, respect scope to the not as a behavior and support statements could finding liability.” discriminatory Id. at defense animus. Tran’s repeated denials of requests Liu’s for ex- summary To judgment, survive tensions of leave combined with his com- present must triable issue fact as to plaints about his increased workload motivating whether sex was a factor in caused support her leave her allega- Amway’s decision to terminate her.7 She tions. His callous and inappropriate com- may by presenting do so either direct or ment that yet, she should not “die we’re evidence, circumstantial both of which are holding projects you” in response to — Palace, given equal weight.8 Desert description “dizzy of the spells” that at -, (“[D]irect U.S. 123 S.Ct. at 2155 experienced bolsters the inference of required evidence of discrimination is not discrimination created his behavior. ”). in mixed-motive cases.... Because dis Finally Tran’s during behavior the evalua- parate require treatment claims tion meeting he held with Liu while she discrimination, of intentional which often leave, was on which was within one or two inquiry, leads to an “elusive” factual “the weeks before decision to terminate plaintiff produce very need little evidence her, also raises inferences of discrimina- discriminatory a genuine motive raise tion. When Tran called Liu to attend the issue of fact.” County v. Clark Mustafa meeting, go he told her to directly to his Dist., (9th Sch. Cir. office. He also told her any- not to stop 1998) France, (quoting Lindahl v. Air 930 where premises else on the because she 1434, 1438 Cir.1991)). working “not company” while Having reviewed the evidence before the on leave. At this meeting, presented Tran court, district I would conclude that Liu Liu with scores, the low evaluation in- a raises triable issue of material fact on formed her primary that her project was whether her sex a motivating was factor in being transferred to another and certain, presents Because I would may conclude that Liu satisfying also be more per- and " case, a mixed-motive discrimination I would (quoting Rog- direct evidence.' suasive than apply Douglas also decline to Co., the McDonnell 500, ers v. Missouri Pac. R.R. 352 U.S. test, shifting despite burden the fact 17, that Liu 443, 508 n. 77 S.Ct. 1 L.Ed.2d 493 Douglas has invoked it. The McDonnell test (1957))). plaintiff alleges is useful where the that the Palace, Prior Desert a mixed motive anal discriminatory has masked actual ysis plaintiff was not available to a that did pretextual reasons with ones. Liu does not present not direct evidence of discrimination. argue that pre the reduction in force awas evidence, In the absence summary of direct dismissal, argues text only for her but judgment using motions were decided the discriminatory Tran’s animus infected de Douglas analysis. McDonnell Trans World Costa, making process. generally cision See Thurston, 111, 121, v. Airlines 469 U.S. 105 Accordingly, by 299 F.3d at 855. cases cited 613, (1985) (“[T]he S.Ct. 83 L.Ed.2d 523 court, Harcourt, Bradley the district such as v. Douglas inapplicable McDonnell test is where Co., 267, (9th Brace & 104 F.3d 270 Cir. plaintiff presents 1996), direct evidence of dis inapposite. are crimination.”). However, Palace, after Desert no such distinction exists. The assessment of Supreme recently explained why The Court Douglas whether ap McDonnell should be direct given and indirect evidence should be Palace, - U.S. at -, plied dependent particular equal weight. on the facts of Desert Ins., (“The the case. treating 123 S.Ct. at See Cordova v. State Farm 2154 reason for 124 1145, (9th Cir.1997) (stating F.3d circumstantial evidence and direct 1148 alike deep Douglas provides is both clear and way” rooted: ‘Circum McDonnell test "one sufficient, discrimination). only stantial evidence is not but to raise an inference of

1142 was discriminatory animus with reduc- dividual would be there her that warned in the adverse maker final decision raises an not the behavior This in workforce. tion 1284; Gagnon Id. at action. discriminatory animus. inference (8th 839, 848 284 F.3d Corp., Sprint v. however, comments, and behavior Tran’s (“[C]ourts the moment Cir.) beyond look originate they because only significant are to determine order was made decision ter over influence person from , by made or comments statements whether v. Weston-Smith decision. mination Cf. a role played employees managerial other Inc., 60, F.3d Hosp., 282 Dickinson Cooley making process decision ultimate in the Cir.2002) complaints (finding that (1st 70 1001, denied, 123 U.S. 537 ....”), cert. of ac “lack plaintiffs about by co-workers and U.S. 537 154 L.Ed.2d 396 S.Ct. protected cessibility” caused L.Ed.2d S.Ct. evi circumstantial constitute not did Co., F.2d (2002); Upjohn v. Shager was because there discrimination dence Cir.1990) (7th (finding that complaints the co-workers’ between no link Thus, Tran’s was plaintiff process). decision fire the decision committee’s “stray discriminatory “prejudice” be dismissed cannot comments “tainted” Wesson, Hunt com Godwin remark[s].” “influenced supervisor because Cir.1998) (9th 1217, 1221 Inc., portraying” mittee’s deliberations by an indi made comment that a (finding ... worst “performance plaintiffs the deci influenced may have who vidual light”). possible stray re not making process sion plain in time between a proximity in an “uttered not it was mark because the termination protected action tiffs directly but “tied manner” ambivalent of dis an inference supports also decision (quoting termination” plaintiff]’s to[the Henderson, 217 Ray v. See crimination. PepsiCo., Nesbit Cir.2000) (“That (9th 1234, 1244 Cir.1993))). by an em caused actions were employer’s as to whether dispute is a factual There protected activities engagement ployee’s reduction directly in the participated Tran in time ‘proximity may be inferred purposes For the process. in force the al protected action between resolve need ” we judgment, summary decision.’ retaliatory employment legedly Godwin, F.3d at inconsistencies. such Thomas, v. (quoting Yartzoff as whether disputes to (finding that Cir.1987))). Here, (9th 1371, 1376 in the involved individual simultaneously because events occurred fact). for trier issue was an decision the termination while Liu was deposition, Robin in Regardless, was made. decision charge of the in employee Dykehouse, provides also of Liu evaluation Tran’s force, that she relied testified in reduction could from discrimination which recommendations Tran’s heavily on in her overall score inferred. Liu’s to terminate the decision evaluations 19% dropped employee evaluation his or maker rests a decision Liu. Where 2.52, to supervisor, 3.1, under former or opinion on an decision her ultimate Winarto, at 1284 under Tran. See by discrimina tainted evaluation reduction that “an unwarranted (finding “clean tion, from a start not she does evi- served as scores” review performance Elecs. Toshiba Am. Winarto slate.” motive). The relative retaliatory dence Components, Tran evaluated which harshness with may Cir.2001). Thus, employer gave Tran example, For is also relevant. the in- liability simply because escape “one,” score, Liu a possible would, the lowest therefore, defense. I conclude that categories evaluation, several on her in- summary judgment should not have been cluding “encourages self-development” and granted on Liu’s discrimination claim. people “holds accountable for meeting

goals.” give Tran did not any “one” to 2. Retaliation year. other evaluated that In her complaint, Liu alleges that Am juryA could also infer discriminatory way also against retaliated her for com particular animus from inconsistencies be- plaining to its Human Depart Resources tween Tran’s evaluation and Liu’s previous ment about Tran’s refusal to extend her supervisor. evaluation her former For leave. For purposes of summary judg example, gave Tran Liu a “one” in “writ- ment, analyze we Liu’s Title communication,” VII and ten category in which FEHA retaliation claim only she had under the six months McDon earlier received nell Godwin, Douglas praise. E.g., shifting burden 150 F.3d at 1222 standard. Winarto, (taking 1283-84; into Brooks, account evidence that 274 F.3d at plaintiff had received indicating recommendations F.3d at 928. step The three burden shift got along that she people well with ing but requires test plaintiff to raise an decision inability makers had cited get to inference of retaliation presenting evi along people denying reason for dence sufficient support prima facie promotion.). her a ease of retaliation. The burden then shifts present who must evi Having examined the overall evidence in legitimate, dence of a non-retaliatory rea record, I would conclude that it raises son for the employee’s dismissal. Once genuine issues of material fact as to this is done the initial presumption is con whether sex discrimination played a moti- sidered rebutted and the burden vating factor in then the decision to terminate shifts plaintiff back to the Liu. to show that Amway may Whether have made the defendant’s so-called non-retaliatory same decision to terminate Liu without rea sons discriminatory pre-textual. Tran’s were Doug influence over the McDonnell decision, Green, Corp. is an issue to las 792, 802-05, be dealt with in 411 U.S. determining the scope damages if Am- 93 (1973); S.Ct. 36 L.Ed.2d 668 Ber way raises a “same decision” gene, affirmative 272 F.3d at 1140-41.9 To state a 9. The relevant provision 2000e-3(a). §§ Title VII retaliation 42 U.S.C. provides that it is an Employment Fair and Hous- California ing Act makes it employment practice unlawful for an em- employment practice, an unlawful unless ployer against discriminate of his upon occupational based a bona quali- fide employees applicants employment, or fication, or, except upon appli- where based employment agency, for an joint labor- security regulations by cable established the management controlling appren- committee United States or the State of California: ticeship training or retraining, other or in- cluding on-the-job training programs, (h) any individual, employer, organization, For labor against any discriminate or for a employment agency, person organization or to dis- against labor to discriminate charge, expel, any or applicant member otherwise discriminate thereof or for mem- against bership, any person opposed any prac- person because he has because the has employment opposed any practices tice made practice an unlawful forbidden under this subchapter, part person or because he or because has made the has filed a com- testified, assisted, charge, testified, a participated plaint, any proceed- or or assisted in investigation, in manner proceed- ing part. in an under this ing, hearing subchapter. under this Cal. Gov.Code 12940. retaliatory they hide because retaliation, pretextual plaintiff of case facie

prima at 1141. 272 F.3d Bergene, motives. that: show must ac- protected in a engaging (1) was she discrimination Title VII sex inAs Liu’s subjected her (2) the tivity, to- and behavior claim, comments Tran’s (3) decision, and adverse an pretextual his to rebut her serve wards the link between causal awas there is relevant Particularly justifications. ac- employer’s the and activity protected pro- Liu that comment aggressive Tran’s tion. her evalua- for directly to his office ceed was she at because while meeting F.3d tion Bergene, compa- working at the leave, “not she was Liu court that the district agree I tense meeting as ny.” Liu describes of facie case prima established clearly meet- evaluation This uncomfortable. ac- protected in engaged Liu retaliation. than two weeks after less occurred ing Re- Human to the complaining tivity De- Human Resources to the complaint Winarto, 274 See Department. sources partment. (finding that at F.3d De- Human Resources to the complaint serve as also scores evaluation Lowered activity under protected awas

partment to rebut motives retaliatory of evidence is VII). connection estab- causal Title in Liu’s score drop The 19% pretext. over termi- influence by Tran’s lished Win See possible of retaliation. evidence temporal proximity process and nation (finding that arto, at 1286-87 274 F.3d adverse activity and protected of the served as score evaluation drop in 17.8% 1244. Evi- Ray, See retaliation). action. to termi- the decision that suggests dence in the evidence that I would conclude after her a few weeks made was nate Liu materi- genuine issues record raises De- Resources Human to the complaint Title Amway violated fact as to al whether at 1376 Yartzoff, 809 See partment. retaliating against and FEHA VII ac- adverse (causation where established I activity. protected in a engaging for after months than three less tions occurred court’s the district reverse would filed). Tran that Evidence was complaint her re- Liu on judgment against summary after she a shorter extension granted claim. taliation De- Human Resources to the complained respectfully dissent Accordingly, I knew suggests Tran partment opinion. IID of the court’s Part N. Road v. Fairbanks See complaint. Dist., Borough Sch. Star concurring in RYMER, Judge, Circuit (“[T]he Cir.2003) must plaintiff part. dissenting part reason- showing sufficient some make differently from claim I see the FMLA that the to infer defen- of fact able trier although I concur majority opinion, en- had plaintiff that the aware dant was of an for breach of claims disposition activity.”). protected gaged covenant and the contract implied-in-fact non-retaliatory turn, Amway offers a In dealing. and fair faith good Amway ar- termination. for her reason court the district argued in Liu never because terminated Liu was gues that per- “mischaracterizing” her leave score lowest evaluation had the con- leave than FMLA leave rather sonal department. in her performer the lowest rights to “interference” to Liu stituted shifts back then The burden event, Amway any In leave. are FMLA Amway’s reasons demonstrate leave, granted requests albeit for ASSOCIATES, LTD.;

less than time she wanted. How her leave GLENDALE Glendale II could not have made dif- Associates labeled Limited Part- case, nership; Schriber, in ference because Donahue she was on Petition- ers, leave she authorized when was terminated (November 1998) part as a of a reduc-

tion in force. Liu dispute does not NATIONAL LABOR RELATIONS Thus, bona fides the reduction in force. BOARD, Respondent. (and as the I), district court saw it so do could still have Amway terminated Liu National Labor Relations even if she had on designated been Board, Petitioner, regardless FMLA leave and of whether on through had been December. Associates, Ltd.; Glendale Glendale reason, For the I disagree same II Associates Limited Partnership; reversal is required even if the district Schriber, Donahue Respondents. court not have should treated Liu’s re- claims maining as interrelated discrimina- 01-71566, Nos. 01-71746. tion on claims based retaliation —and so United States Court of Appeals, subject to burden-shifting analysis Ninth Circuit. Green, McDonnell Douglas Corp. v. U.S. 93 S.Ct. 36 L.Ed.2d 668 Argued and Submitted Nov. (1973) should instead have consid- —but Filed Oct. ered whether used the taking of (FMLA) leave “negative as a factor” its

decision terminate Liu analy- under the prescribed by sis Bachelder v. America Airlines, West Cir.2001). Liu does not have substantive right compensated or reinstated if

she would not otherwise have been em- ployed position because was eliminated

in a minimum, force. But at a reduction parties argue

because the did not ap- plicability of Bachelder before the district

court, did they litigate nor on this case summary judgment using the Bachelder

standard, and they because offer no insight appeal as to plays how Bachelder out on adduced, the record I would remand for parties and the district court to revisit light issue of the standard that we now hold is correct.

Case Details

Case Name: Xin Liu v. Amway Corporation Does 1-50 Inclusive

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Oct 30, 2003

Citation: 347 F.3d 1125

Docket Number: 01-57013

Court Abbreviation: 9th Cir.