                                                                           FILED
                           NOT FOR PUBLICATION
                                                                            JUL 17 2017
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


NIDAL CHATILA,                                   No.   16-15244

              Plaintiff-Appellant,               D.C. No. 2:14-cv-02022-SRB

 v.
                                                 MEMORANDUM*
SCOTTSDALE HEALTHCARE
HOSPITALS, DBA HonorHealth Deer
Valley Medical Center, DBA John C.
Lincoln Deer Valley Hospital, an Arizona
corporation,

              Defendant-Appellee.


                    Appeal from the United States District Court
                             for the District of Arizona
                     Susan R. Bolton, District Judge, Presiding

                        Argued and Submitted June 5, 2017
                              Pasadena, California

Before: BEA and HURWITZ, Circuit Judges, and MOTZ,** District Judge.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable J. Frederick Motz, United States District Judge for the
District of Maryland, sitting by designation.
       Nadil Chatila appeals the summary judgment in favor of Scottsdale

Healthcare Hospitals (the “Hospital”) on Chatila’s claims under the Family and

Medical Leave Act (“FMLA”), Americans with Disabilities Act (“ADA”), and

Rehabilitation Act of 1973 (“Rehab Act”). We have jurisdiction under 28 U.S.C. §

1291. We affirm the judgment as to Chatila’s ADA and Rehab Act claims.

However, we reverse the judgment as to Chatila’s FMLA claim and remand to the

district court.1

       1. We affirm the grant of summary judgment on the ADA and Rehab Act

claims because Chatila failed to raise a triable issue of fact that the Hospital’s

nondiscriminatory reason for its alleged adverse employment action was

pretextual. See Raytheon Co. v. Hernandez, 540 U.S. 44, 49 n.3 (2003). During the

last three months of her employment as a pharmacy technician, Chatila made six

medication errors, at least one of which would have threatened the life of a patient

had the medication been administered. Chatila failed to identify any similarly-

situated Hospital employee without Chatila’s disability who also made life-

threatening medication errors but did not suffer a similar adverse employment

action. See Odima v. Westin Tucson Hotel Co., 991 F.2d 595, 602 (9th Cir. 1993)


       1
        Because the parties are familiar with the factual and procedural history of
this case, we recite only those facts necessary to resolve the issues raised on
appeal.
                                            2
(comparing qualifications of employees to “ferret out discriminatory motives” of

employer).

      2. However, Chatila raised triable issues of fact regarding whether she

requested FMLA leave before her purported resignation and whether the Hospital

interfered with her right to take leave under the FMLA. Chatila purportedly

resigned during a meeting with her supervisor on October 22, 2013. Chatila’s

supervisor did not dispute that, the night before the meeting, he read an email from

Chatila which stated the following: “It may be a good idea for me to take [FMLA]

to recover from the emotional factors that have put impact on my illness.” It is also

undisputed that Chatila wrote the following note on the final written warning she

received during the meeting: “Need to take full [FMLA]/I feel the medication and

illness needs working on.” When viewed in the light most favorable to Chatila, the

email and handwritten note raise a triable issue of fact regarding whether Chatila

requested FMLA leave before her purported resignation.

      Chatila also raised a triable issue of fact regarding whether the Hospital

interfered with her rights under the FMLA. The FMLA makes it “unlawful for any

employer to interfere with, restrain, or deny the exercise of or the attempt to

exercise, any right provided” under the statute. 29 U.S.C. § 2615(a). The

regulations which interpret the FMLA state that “[i]n all cases, the employer


                                           3
should inquire further of the employee if it is necessary to have more information

about whether FMLA leave is being sought by the employee, and obtain the

necessary details of the leave to be taken.” 29 C.F.R. § 825.302(c);2 Bachelder, 259

F.3d at 1130 (“[I]t is the employer’s responsibility, not the employee’s, to

determine whether a leave request is likely to be covered by the [FMLA].”).

Chatila’s supervisor did not “inquire further” upon receipt of Chatila’s email or

note whether Chatila had requested FMLA leave. A reasonable jury could find that

the failure to do so interfered with Chatila’s attempt to exercise her rights under the

FMLA.

      Chatila’s supervisor also made comments during the meeting on October 22,

2013, that raise a triable issue of fact regarding whether the Hospital interfered

with Chatila’s attempt to exercise her rights under the FMLA. During the meeting,

Chatila’s supervisor complained to Chatila that she was “putting bombshells in

between every week” when he was “trying to make a cohesive clean working

schedule.” A reasonable jury could interpret that statement as a reference to



      2
         See also Bachelder v. Am. W. Airlines, Inc., 259 F.3d 1112, 1123 n.9 (9th
Cir. 2001) (“Congress authorized the Department of Labor to promulgate
regulations implementing the FMLA. 29 U.S.C. § 2654. The department’s
reasonable interpretations of [ambiguous provisions of the] statute are therefore
entitled to deference under Chevron USA Inc. v. Natural Resources Defense
Council, 467 U.S. 837, 843–44 (1984).”).
                                           4
Chatila’s requests for FMLA leave. Chatila’s supervisor also told Chatila that he

“could have done it the hard way, but . . . didn’t[,]” which a reasonable jury could

interpret as a warning to Chatila that she would be fired if she did not resign.

      3. Chatila did not expressly raise a hostile work environment cause of action

in her original or amended complaint. Therefore, the district court did not err when

it refused to consider Chatila’s argument that she pleaded a separate hostile work

environment claim. See 389 Orange St. Partners v. Arnold, 179 F.3d 656, 665 (9th

Cir. 1999).

      AFFIRMED IN PART; REVERSED IN PART AND REMANDED.




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