                                                                           FILED
                            NOT FOR PUBLICATION                             OCT 7 2014

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


WILFREDO A. GOLEZ,                               No. 12-56471

               Plaintiff - Appellant,            D.C. No. 3:09-cv-00965-AJB-
                                                 WMC
  v.

UNITED STATES POSTAL SERVICE;                    MEMORANDUM*
PATRICK R. DONAHOE, Postmaster
General,

               Defendants - Appellees.


                    Appeal from the United States District Court
                       for the Southern District of California
                    Anthony J. Battaglia, District Judge, Presiding

                           Submitted September 23, 2014**

Before:        W. FLETCHER, RAWLINSON, and CHRISTEN, Circuit Judges.

       Wilfredo A. Golez appeals pro se from the district court’s judgment in his

action alleging violations of the Family Medical Leave Act (“FMLA”), Title VII,

and the Rehabilitation Act arising out of his termination. We have jurisdiction

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
under 28 U.S.C. § 1291. We review de novo a district court’s conclusion of law

and for clear error its findings of fact following a bench trial. Milicevic v. Fletcher

Jones Imports, Ltd., 402 F.3d 912, 915 (9th Cir. 2005). We affirm.

      The district court did not clearly err when it credited the testimony of other

witnesses over Golez’s testimony and found that Golez failed to follow defendants’

attendance and FMLA-leave policies in connection with eleven incidents of

unscheduled tardiness and an unscheduled absence from work. See Fed. R. Civ. P.

52(a)(6) (“Findings of fact . . . must not be set aside unless clearly erroneous, and

the reviewing court must give due regard to the trial court’s opportunity to judge

the witnesses’ credibility.”); Anderson v. Bessemer City, 470 U.S. 564, 573-74

(1985) (“If the district court’s account of the evidence is plausible in light of the

record, the court of appeals may not reverse it even though convinced that had it

been sitting as the trier of fact, it would have weighed the evidence differently.”).

      The district court did not clearly err in finding that Golez did not prove by a

preponderance of the evidence that defendants used his taking of FMLA leave on

May 11, 2008 as a negative factor in terminating his employment. See Escriba v.

Foster Poultry Farms, Inc., 743 F.3d 1236, 1243 (9th Cir. 2014) (setting forth the

elements of a prima facie case of FMLA interference, which include the

requirement that the employee provide sufficient notice of the intent to take FMLA


                                            2                                    12-56471
leave).

      The district court did not abuse its discretion when it excluded the doctor’s

certification regarding the seriousness of Golez’s mother’s health. See GCB

Commc’ns, Inc. v. U.S. S. Commc’ns, Inc., 650 F.3d 1257, 1262 (9th Cir. 2011)

(setting forth the standard of reviewing and explaining that evidentiary rulings

should not be reversed unless “it is more probable than not than an error, if any,

tainted the outcome”).

      Contrary to Golez’s contention, the district court applied the correct version

of 29 C.F.R. § 825.303 to the eleven incidents of unscheduled tardiness and an

unscheduled absence from work which occurred in 2008.

      We do not consider issues that are not specifically and distinctly raised and

argued in Golez’s opening brief. See Miller v. Fairchild Indus., Inc., 797 F.2d 727,

738 (9th Cir. 1986).

      Golez’s motion to submit exhibits with his opening brief, filed on February

4, 2013, is granted.

      AFFIRMED.




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