                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       MAR 20 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

KIMBERLY GUNTHER, for herself and for No. 17-56626
all other current and former aggrieved
employees,                             D.C. No.
                                       2:16-cv-02541-PSG-MRW
                 Plaintiff-Appellant,

 v.                                             MEMORANDUM*

INTERNATIONAL BUSINESS
MACHINES CORPORATION, a New York
Corporation,

                Defendant-Appellee.

                   Appeal from the United States District Court
                       for the Central District of California
                   Philip S. Gutierrez, District Judge, Presiding

                            Submitted March 4, 2019**
                              Pasadena, California

Before: WARDLAW and BENNETT, Circuit Judges, and SESSIONS,*** District
Judge.


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
              The Honorable William K. Sessions III, United States District Judge
for the District of Vermont, sitting by designation.
      Kimberly Gunther appeals the district court’s holding that International

Business Machines Corporation’s (IBM) California vacation and personal-choice

holiday (PCH) policies (collectively “the Plan”) are lawful under section 227.3 of

the California Labor Code. We have jurisdiction under 28 U.S.C. § 1291, and we

affirm.

      Section 227.3 of the California Labor Code prohibits the forfeiture of vested

vacation time upon termination of employment. Here, the Plan caps the number of

vacation and PCH days IBM employees can accrue in the future, based in part on

how many vacation and PCH days they have already accrued but not used. The

Plan does not, however, reclaim or take away vacation or PCH days that have

already vested. Thus, the Plan is legal under section 227.3. See Boothby v. Atlas

Mech., Inc., 8 Cal. Rptr. 2d 600, 604–05 (Ct. App. 1992).

      It is therefore immaterial whether PCH days should be treated as vacation

days for purposes of section 227.3. If PCH days are treated as vacation days, then

the PCH policy is legal under section 227.3 because PCH days and vacation days

are capped in the same way. If PCH days are not treated as vacation days, then

section 227.3 does not apply in the first place.

      AFFIRMED.




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