                                                                           FILED
                            NOT FOR PUBLICATION                             OCT 05 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



SALLY M. KINNEY,                                 No. 09-35406

              Plaintiff - Appellant,             D.C. No. 3:07-cv-00147-RRB

  v.
                                                 MEMORANDUM *
HOLIDAY COMPANIES; et al.,

              Defendants - Appellees.



                   Appeal from the United States District Court
                             for the District of Alaska
                 Ralph R. Beistline, Chief District Judge, Presiding

                        Argued and Submitted July 30, 2010
                                Anchorage, Alaska

Before: SCHROEDER, O’SCANNLAIN and CLIFTON, Circuit Judges.

       Sally Kinney appeals the district court’s summary judgment in favor of

defendants (“Holiday”) on her claims under the Family and Medical Leave Act of

1993 (“FMLA”). Kinney argues that Holiday violated the FMLA (1) by firing her

for a pretextual reason intended to mask the true, health-related motivation for her



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
termination and (2) by denying her alleged request for medical leave on March 13,

2007. We review the district court’s grant of summary judgment de novo. Liu v.

Amway Corp., 347 F.3d 1125, 1131 (9th Cir. 2003). Although we affirm the

judgment on the issues that the district court reached, Kinney’s FMLA termination

claim—which the district court failed to consider—gives rise to a genuine dispute

of material fact. We vacate summary judgment as to that claim and remand for

further proceedings.

      The district court erred in explicitly declining to address Kinney’s claim that

Holiday violated the FMLA by firing her because of her cancer. Interference with

FMLA rights includes “not only refusing to authorize FMLA leave, but

discouraging an employee from using such leave.” 29 C.F.R. § 825.220(b).

“[E]mployers cannot use the taking of FMLA leave as a negative factor in

employment actions, such as hiring, promotions or disciplinary actions.” Id. §

825.220(c).

      Kinney has a valid FMLA termination claim if she can show that Holiday

used her 2005 and 2006 FMLA-covered absences, in conjunction with its

awareness that her illness might require more medical leave in the future, as a

“negative factor” in its decision to fire her. Although Kinney did not clearly

present a termination-related claim in her complaint, she did allege an interference


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claim that mentioned her termination, and she argued a termination theory in

opposition to summary judgment. “Even when [plaintiff’s counsel] initially

misconceive[s] the proper legal theory of [a] claim, summary judgment does not

follow if the plaintiff is entitled to relief on some other legal theory and requested

as much.” Alvarez v. Hill, 518 F.3d 1152, 1158 (9th Cir. 2008) (internal quotation

marks omitted). The district court demonstrated its awareness of “Kinney’s

allegations of wrongful termination” in its order granting summary judgment, and

the court erred in failing to address them.

      The record makes clear that Kinney’s termination claim is not amenable to

summary judgment on remand because it raises a genuine issue of material fact.

See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Kinney contends

that “the proximity in time” between her cancer’s recurrence and her termination

“provides supporting evidence of a connection between the two events,” Liu, 347

F.3d at 1137, and that Holiday’s given reason for firing her was a pretext. Kinney

presented evidence that the Holiday managers involved in the termination decision

were aware that her cancer had returned and discussed whether she had taken

FMLA leave shortly before she was terminated. Such evidence creates a triable

issue as to whether her potential need for FMLA leave in the future was a negative

factor in Holiday’s decision to terminate her. Furthermore, although Holiday


                                              3
claims to have fired Kinney, in accordance with company policy, because she

twice failed to verify the age of a customer purchasing cigarettes, there is

conflicting evidence as to whether Kinney’s first tobacco-sale violation occurred at

all. Whether it did is a question for a trier of fact that bears directly on the

likelihood that Holiday’s reason for firing Kinney was genuine, and thus indirectly

on the likelihood that her illness was a “negative factor” in Holiday’s termination

decision.

       The district court properly rejected Kinney’s claim that Holiday violated the

FMLA by denying her supposed request for medical leave on March 13, 2007.

Kinney never made an unconditional request for time off on March 13, let alone

one that met the FMLA’s notice requirement. Kinney told her manager that she

“wasn’t feeling good” and “needed to go home,” and she asked her manager if she

could “possibly find somebody to come in.” The manager said “she would try,” but

neither party spoke of the matter again for the rest of Kinney’s shift. Kinney

conditioned her request on her manager’s finding a replacement worker, which her

manager apparently did not or could not do. Even if Kinney had made an

unconditional request, she would not have satisfied the FMLA’s notice

requirement for an employee in her situation. “An employee giving notice of the

need for unpaid FMLA leave must explain the reasons for the needed leave so as to


                                             4
allow the employer to determine that the leave qualifies under the Act. If the

employee fails to explain the reasons, leave may be denied.” 29 C.F.R. §

825.208(a)(1) (2007). Kinney’s vague statements were insufficient to put her

manager on notice that she was seeking FMLA-protected leave. We therefore

affirm the district court’s grant of summary judgment on the FMLA claim based on

denial of leave.

      The district court acted within its discretion when it denied Kinney’s motion

to amend her complaint. Because Kinney sought to amend her complaint after the

deadline set by the district court’s scheduling order, she had to show good cause

for amendment, which depends primarily on whether she acted diligently. Johnson

v. Mammoth Recreations, Inc., 975 F.2d 604, 608-09 (9th Cir. 1992). The district

court properly found that Kinney knew or should have known of the grounds for

the claims she sought to add well before she moved for leave to amend her

complaint. We therefore affirm the court’s conclusion that Kinney failed, for lack

of diligence, to demonstrate good cause for amendment.

      Each party is to bear its own costs.

      AFFIRMED in part, VACATED in part, and REMANDED.




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