                                                             FILED
                                                         NOVEMBER 29, 2018
                                                      In the Office of the Clerk of Court
                                                     WA State Court of Appeals, Division III




         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                            DIVISION THREE

MARIA G. ESPINDOLA,                      )              No. 35262-5-III
                                         )
                 Petitioner,             )
                                         )
     v.                                  )              PUBLISHED OPINION
                                         )
APPLE KING, a limited liability company, )
                                         )
                 Respondent.             )

       PENNELL, A.C.J. — Under the state and federal family medical leave acts, an

employee who is incapacitated due to a serious medical condition, such as pregnancy,

has the right to take protected leave from work. This right persists even when an episode

of incapacitation is unforeseeable. Should an employee invoke protected leave, including

unforeseeable protected leave, an employer cannot use the employee’s actions as a

negative factor in a subsequent employment decision. Doing so would constitute

retaliation in violation of state and federal law.
No. 35262-5-III
Espindola v. Apple King


       While employed with Apple King, Maria Espindola discovered she was pregnant.

Over the course of her pregnancy, Ms. Espindola experienced medical complications

that caused her to miss work. Apple King was aware of Ms. Espindola’s pregnancy and

knew she had experienced some health problems. Nevertheless, Apple King used some

of Ms. Espindola’s work absences as negative factors in its ultimate decision to terminate

employment. According to Apple King, Ms. Espindola was properly penalized because

she failed to comply with the company’s attendance policy, requiring at least one day’s

advance notice of all medical absences not involving hospitalization.

       Apple King’s reliance on its attendance policy is unavailing. Because Apple

King’s policy did not account for an employee’s right to take unforeseeable protected

leave, Ms. Espindola’s failure to comply with the policy was not a legitimate basis for an

adverse employment action. Given that Ms. Espindola has produced sufficient facts to

demonstrate Apple King was on notice of her need for unforeseeable protected leave,

Apple King is not entitled to summary judgment on Ms. Espindola’s retaliation claim.

This matter is therefore reversed.

                                         FACTS

       Apple King operates a fruit warehouse and packing facility in Yakima County,

Washington. Maria Espindola worked for Apple King from August 2, 2007, to April 20,


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2012. On May 1, 2011, Apple King implemented an attendance policy. Ms. Espindola

received and signed a copy of the policy on August 14, 2011. The policy provides:

      As of May 1st, 2011, [Apple King] will put into practice a revised 24 point
      attendance scoring system. Each employee will have 24 points to use up
      between May 1st and the last day of April. You will start with 0 points and
      each attendance infraction will be counted in the following manner.

      NO POINTS will be counted for appts. with 24 hr. notice and proof of appt.
      2 Points for not giving 24 hr. notice regardless of proof
      2 Points for being Tardy
      2 Points for leaving before end of shift without proof of appointment
      3 Points per absence without proof of appointment (unless you use a
      Vacation Day)
      12 Points for a NO CALL-NO SHOW
      No points will be counted for L&I appointments.

      If you reach the 24 point mark before the designated time, your employment
      with Apple King, LLC will be terminated. It is very important to
      understand that this will be the same for all Packing House employees.
      Every 1st of May each employee will start with 0 points once again only if
      they have managed not to reach the 24 point mark by the end of the last day
      of April. We strongly encourage you to set up your appointments on your
      day(s) off.

Clerk’s Papers (CP) at 233.

      According to an Apple King representative, employees were verbally notified that

no points would be assessed against them for attending funerals or for emergencies such

as hospitalizations or car accidents. Apple King’s attendance policy did not reference the

federal or state medical leave acts. Nor did the policy explain how Apple King would


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Espindola v. Apple King


account for leave that is protected under state or federal law. According to testimony

from Apple King, the decision of whether to assess points for an employee absence is

determined solely by the company’s attendance policy.

       In June or July 2011, Ms. Espindola discovered she was pregnant and reported her

condition to her supervisor. Ms. Espindola was then absent from work on July 20, 21,

and 22. She produced a doctor’s note dated July 21 stating she had been prescribed two

days’ bed rest. Pursuant to Apple King’s attendance policy, Ms. Espindola was assessed

two points for her absence on July 20 because she only provided same-day notice of a

medical appointment.

       In August 2011, Ms. Espindola developed kidney stones. Ms. Espindola was

hospitalized from August 21 to 25, 2011, and submitted a doctor’s note stating she was

not clear to return to work until after a follow-up appointment on August 31. The

doctor’s note did not provide the reason for Ms. Espindola’s hospitalization, but

according to Ms. Espindola she had been hospitalized due to the kidney stones. Apple

King did not assess Ms. Espindola any attendance points for her hospitalization. It is

unclear whether Apple King knew of the reason for Ms. Espindola’s hospitalization, but

the company did at least know that Ms. Espindola had been hospitalized during the course

of her pregnancy.


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No. 35262-5-III
Espindola v. Apple King


        In the months following her hospitalization, Ms. Espindola had numerous medical

appointments. Apple King was advised of the appointments, and Ms. Espindola was not

assessed any attendance points for those absences. Ms. Espindola was also permitted to

take time to check her blood sugar at work after reporting that she had been diagnosed

with gestational diabetes. Ms. Espindola’s gestational diabetes did not cause her to miss

work.

        The last full month of Ms. Espindola’s pregnancy was December 2011. During

that month, Ms. Espindola left work early on three occasions. She was assessed two

attendance points on each date. Also in December, Ms. Espindola missed a day of work

and provided same-day notice of her absence. Ms. Espindola was assessed three points

on this occasion. Ms. Espindola did not provide any doctors’ notes explaining her

December absences. However, Ms. Espindola has testified that she had told her

supervisor she was in debilitating pain from kidney stones. According to Ms. Espindola,

her supervisor provided permission to either leave work early or stay at home, as at times

she was unable to work due to the pain. Apple King did not request medical

documentation from Ms. Espindola to verify her explanations.

        Ms. Espindola began her maternity leave on January 9, 2012, and returned to work

on March 4. During her maternity leave, Ms. Espindola reportedly had her kidney stones


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No. 35262-5-III
Espindola v. Apple King


removed. Apple King did not assess Ms. Espindola any attendance points for her

maternity leave.

      Apple King fired Ms. Espindola on April 20, 2012, because she had exceeded the

24 points allowed annually by the company’s attendance policy. The following chart

illustrates Ms. Espindola’s absences from work between May 1, 2011, and April 20,

2012, and the points she was assessed under the attendance policy:


                   Disposition          Reason for Absence                       Record
    Date                                                                Points
                                        and/or Disposition                        (CP)

                                    Left work early (late proof of
May 20, 2011       Unexcused                                              2      239-40
                                           appointment)

June 6, 2011        Excused             Dental appointment                0      252-53

June 10, 2011       Excused             Doctor appointment                0      252-53

 July 8, 2011       Excused          Illness (bladder infection)          0      254-55

July 12, 2011       Excused             Doctor appointment                0      256-57

                                 Left work early (same day notice of             38, 50,
July 20, 2011      Unexcused                                              2
                                            appointment)                          258

                                 Illness (note from doctor dated July            38, 50,
July 21, 2011       Excused                                               0
                                     21 calls for 2 days bed rest)               258-59




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No. 35262-5-III
Espindola v. Apple King



                 Disposition           Reason for Absence                        Record
    Date                                                                Points
                                       and/or Disposition                         (CP)

                               Illness (note from doctor dated July              38, 50,
July 22, 2011     Excused                                                 0
                                   21 calls for 2 days bed rest)                 258-59

Aug. 1, 2011      Excused              Doctor appointment                 0      260-61

                                 Hospitalization (note from doctor
Aug. 21 to 25,                 states she cannot return to work until
                  Excused                                                 0      262-63
    2011                        after her follow-up appointment on
                                              Aug. 31)
                                Doctor appointment (for imaging
Sept. 9, 2011     Excused                                                 0      264-65
                                           studies)
Sept. 16, 2011    Excused              Doctor appointment                 0      266-67
Sept. 17, 2011    Excused            Left work early (illness)            0        266
Oct. 11, 2011     Excused              Doctor appointment                 0      268-69
                               Doctor appointment (for laboratory
Oct. 12, 2011     Excused                                                 0      268, 270
                                            studies)
Oct. 25, 2011    Unexcused     Doctor appointment (no excuse slip)        2        243
                                  Absent without advance notice                  134-35,
Nov. 10, 2011    Unexcused                                                3
                                       (called same day)                         244, 756
Nov. 22, 2011     Excused              Doctor appointment                 0        271
Dec. 9, 2011     Unexcused                Left work early                 2        245
Dec. 19, 2011    Unexcused                Left work early                 2        246
                                                                                 134-35,
Dec. 20, 2011    Unexcused          Absent (called same day)              3
                                                                                   246
Dec. 27, 2011     Excused              Doctor appointment                 0        248
Dec. 30, 2011    Unexcused                Left work early                 2        248

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No. 35262-5-III
Espindola v. Apple King



                 Disposition            Reason for Absence                          Record
    Date                                                                 Points
                                        and/or Disposition                            (CP)
                                                                                     38, 50,
 Jan. 9 to
                   Excused                 Maternity leave                  0       59, 237,
Mar. 2, 2012
                                                                                    306-07
Mar. 6, 2012       Excused       Doctor appointment (for her baby)          0       273-74
                                  Left work early due to suspension
Mar. 23, 2012     Unexcused                                                 2      249, 278
                                      (work performance issue)
                                   Suspension (work performance
Mar. 24, 2012     Unexcused                                                 3      249, 278
                                               issue)
                                   Suspension (work performance
Mar. 26, 2012     Unexcused                                                 3      250, 278
                                               issue)
 Apr. 4, 2012      Excused       Doctor appointment (for her baby)          0       275-76
Apr. 17, 2012     Unexcused                Left work early                  2         251
       Ms. Espindola’s employment was terminated on April 20, 2012,
                                                                                   237, 251
               for accumulating 28 adverse attendance points

       In July 2014, Ms. Espindola filed suit in Yakima County District Court alleging

Apple King had terminated her employment in a discriminatory and retaliatory manner

because she missed work due to serious health conditions. In January 2016, the district

court dismissed most of Ms. Espindola’s claims on summary judgment, leaving only

claims for unlawful discrimination and retaliation under the state and federal family

medical leave acts. In a letter decision dated June 22, 2016, the district court also granted

summary judgment to Apple King on the remaining claims. The superior court affirmed

on appeal. Our court granted discretionary review pursuant to RAP 2.3(d)(3).

                                              8
No. 35262-5-III
Espindola v. Apple King


                                        ANALYSIS

       We review orders on summary judgment de novo. Lyons v. U.S. Bank Nat’l Ass’n,

181 Wn.2d 775, 783, 336 P.3d 1142 (2014); Mikolajczak v. Mann, 1 Wn. App. 2d 493,

496, 406 P.3d 670 (2017). Under this standard, our court engages in the same inquiry as

the trial court, viewing the facts and all reasonable inferences therefrom in the light most

favorable to the nonmoving party. Lyons, 181 Wn.2d at 783; Mikolajczak, 1 Wn. App. 2d

at 496-97.

The federal and state medical leave acts

       The Family and Medical Leave Act of 1993 (FMLA), 29 U.S.C. §§ 2601-2654;

29 C.F.R. pt. 825 was implemented by the federal government to address “inadequate job

security for employees who have serious health conditions that prevent them from

working temporary periods.” 29 U.S.C. § 2601(a)(4). The purposes of the FMLA

include the need “to balance the demands of the workplace with the needs of families,”

and “to entitle employees to take reasonable leave for medical reasons” including “the

birth . . . of a child.” 29 U.S.C. § 2601(b)(1), (2). Similarly, Washington’s Family Leave

Act (WFLA), chapter 49.78 RCW, states it is “in the public interest to provide reasonable

leave for medical reasons.” RCW 49.78.010. The WFLA mirrors the FMLA and

provides that courts are to interpret its provisions in a manner consistent with similar


                                              9
No. 35262-5-III
Espindola v. Apple King


provisions of the FMLA. RCW 49.78.410 (The WFLA “must be construed . . .

consistent[ly] with similar provisions, if any, of the [FMLA] . . . and [provide]

consideration to the rules, precedents, and practices of the federal department of labor

relevant to the [FMLA].”); Shelton v. Boeing Co., 702 Fed. App’x 567, 568 (9th Cir.

2017); Crawford v. JP Morgan Chase NA, 983 F. Supp. 2d 1264, 1269 (W.D. Wash.

2013).

         The substantive right enjoyed by employees under the FMLA and WFLA is the

ability to take 12 weeks’ leave from work per year for protected health or family reasons

without suffering negative employment consequences. 29 U.S.C. §§ 2612(a)(1), 2614(a);

RCW 49.78.220, .280. To safeguard this right, both the FMLA and WFLA prohibit

employers from discriminating and retaliating against employees who engage in protected

conduct. 1 The laws recognize two types of prohibited discrimination and retaliation.

First, 29 U.S.C. § 2615(a)(2) and RCW 49.78.300(1)(b), make it unlawful for an

employer “to discharge or in any other manner discriminate against any individual for

opposing any practice made unlawful by” the FMLA and WFLA. Second, 29 C.F.R.


         1
         The medical leave statutes also prohibit employers from interfering with
an employee’s exercise of FMLA/WFLA rights. 29 U.S.C. § 2615(a)(1);
RCW 49.78.300(1)(a). However, this case does not involve a straight interference
claim, such as what might be asserted if an employer refused to grant an employee
the substantive right to reinstatement after the employee exercised protected leave.

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No. 35262-5-III
Espindola v. Apple King


§ 825.220(c) 2 “prohibits an employer from discriminating or retaliating against an

employee or prospective employee for having exercised or attempted to exercise FMLA

rights.” 3

The legal test applicable to Ms. Espindola’s FMLA/WFLA claim

       Ms. Espindola’s complaint alleged the second type of protection from retaliation,

i.e., that she was terminated for exercising rights protected by the FMLA and WFLA.

29 C.F.R. § 825.220(c). Pursuant to this form of protection, “employers cannot use the

taking of FMLA leave as a negative factor in employment actions, such as hiring,




       2
          The statutory source for this regulation is an area of confusion and dispute.
Compare Arban v. W. Publ’g Corp., 345 F.3d 390, 401 (6th Cir. 2003) (retaliation for
exercising FMLA rights arises under 29 U.S.C. § 2615(a)(2)), and Smith v. Diffee Ford-
Lincoln-Mercury, Inc., 298 F.3d 955, 960 (10th Cir. 2002) (same), and Loveland v.
Emp’rs Mut. Cas. Co., 674 F.3d 806, 810-11 (8th Cir. 2012) (same) with Strickland v.
Water Works & Sewer Bd., 239 F.3d 1199, 1206 (11th Cir. 2001) (retaliation for
exercising FMLA rights arises under 29 U.S.C. § 2615(a)(1) and (2) as well as 29 C.F.R.
§ 825.220(c)), and King v. Preferred Technical Grp., 166 F.3d 887, 891 (7th Cir. 1999)
(same), and Hodgens v. Gen. Dynamics Corp., 144 F.3d 151, 159-60 (1st Cir. 1998)
(same), and with Bachelder v. Am. W. Airlines, 259 F.3d 1112 (9th Cir. 2001) (retaliation
for exercising FMLA rights arises under 29 U.S.C. § 2615(a)(1) and 29 C.F.R.
§ 825.220(c)). We need not enter this fray. All courts agree that an employee can bring
a retaliation claim based on the exercise of FMLA rights. Furthermore, the WFLA
provides statutory authority for considering the terms of the federal implementing
regulations. RCW 49.78.410.
        3
          The WFLA specifically incorporates consideration of regulatory rules applicable
to the FMLA. Id.

                                            11
No. 35262-5-III
Espindola v. Apple King


promotions or disciplinary actions; nor can FMLA leave be counted under no fault

attendance policies.” Id.

       The parties dispute the test applicable to the type of retaliation claimed by Ms.

Espindola. According to Ms. Espindola, we should apply a McDonnell Douglas-style

burden shifting analysis, under which the employee must first make out a prima facie case

of discrimination; then a production burden shifts to the employer to provide a legitimate,

nondiscriminatory reason for its adverse employment action and, if this burden is met, the

employee bears the ultimate burden of demonstrating that the employer’s articulated

reason for its action was a mere pretext for discrimination or retaliation. McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973).

Apple King contends that the McDonnell Douglas analysis is inapplicable. According to

Apple King, we should follow the lead of the Ninth Circuit Court of Appeals and find the

McDonnell Douglas burden-shifting scheme inapplicable to Ms. Espindola’s claim. On

this legal point, we agree with Apple King. However, as shall be discussed, the Ninth

Circuit’s test actually favors Ms. Espindola.

       In Bachelder v. America West Airlines, the Ninth Circuit held that the McDonnell

Douglas burden-shifting analysis does not apply to retaliation claims under 29 C.F.R.

§ 825.220(c). Bachelder v. Am. W. Airlines, 259 F.3d 1112, 1125 (9th Cir. 2001).


                                             12
No. 35262-5-III
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Because the United States Department of Labor’s regulation prohibits the use of FMLA-

protected leave as a “negative factor” in an employment decision, the Ninth Circuit

recognized that an employee “need only prove by a preponderance of the evidence that

her taking of FMLA-protected leave constituted a negative factor in the decision to

terminate her. She can prove this claim, as one might any ordinary statutory claim, by

using either direct or circumstantial evidence, or both. . . . No scheme shifting the burden

of production back and forth is required.” Id. at 1125.

       Based on Bachelder and the plain language of 29 C.F.R. § 825.220(c), it is

apparent that a plaintiff claiming retaliation for the exercise of FMLA/WFLA rights need

only prove: (1) he or she was absent from work for reasons covered by the

FMLA/WFLA, (2) he or she suffered an adverse employment decision, and (3) the

covered leave was a negative factor in the employer’s adverse employment decision. 4

Because establishing a regulatory retaliation claim does not require specific proof

of discriminatory intent, there is no need to require the employer to proffer a



       4
         Because Bachelder found 29 C.F.R. § 825.220(c) was adopted pursuant to
29 U.S.C. § 2615(a)(1) (that prohibits interference with the exercise of FMLA rights),
it labeled a regulatory claim an “interference” claim. 259 F.3d at 1124-25. However,
because the regulation itself employs the words “discriminating” and “retaliating,” a
regulatory claim is more appropriately labeled a discrimination or retaliation claim.
Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 146 n.9 (3d Cir. 2004).

                                             13
No. 35262-5-III
Espindola v. Apple King


nondiscriminatory basis for its employment decision or for the employee to rebut

the employer’s proffer.

Application of the applicable standard to Ms. Espindola’s claim

       Here, it is undisputed Ms. Espindola was fired from Apple King because of

absences from work. Thus, the viability of Ms. Espindola’s retaliation claim rests on the

first factor of the retaliation test—i.e., whether at least some of Ms. Espindola’s absences

were protected by the FMLA/WFLA. Proof of this factor depends on whether Ms.

Espindola can establish that she provided Apple King with adequate notice of a request

for FMLA/WFLA protected leave.

       Legal requirements for adequate notice

       To invoke the right to protected leave, an employee must provide adequate notice

to his or her employer. 29 U.S.C. § 2612(e); RCW 49.78.250. The notice requirement is

“not onerous.” Preddie v. Bartholomew Consol. Sch. Corp., 799 F.3d 806, 816 (7th Cir.

2015). “An employee giving notice of the need for FMLA[/WFLA] leave does not need

to expressly assert rights under the Act or even mention the FMLA[/WFLA] to meet his

or her obligation to provide notice.” 29 C.F.R. § 825.301(b). Verbal notice is sufficient.

29 C.F.R. § 825.302(c). There are three general components of adequate FMLA/WFLA

notice: content, timing, and compliance with employer policy. The failure to meet any of


                                             14
No. 35262-5-III
Espindola v. Apple King


these three components can result in denial of FMLA/WFLA leave and protections. But

once an employee provides adequate notice, the employer must take responsive action.

       With respect to content, an employee’s notice must refer to a condition that

qualifies for leave under the FMLA/WFLA. Protected leave does not apply to minor

illnesses; merely calling in sick is insufficient to trigger an employee’s right to protected

leave. 29 C.F.R. § 825.303(b). However, pregnancy-related incapacitation is an

explicitly covered condition. 29 C.F.R. § 825.115(b); RCW 49.78.020(16)(a)(ii)(B).

Also covered is incapacitation due to a serious medical condition that “makes

the employee unable to perform the functions” of the employee’s job. 29 U.S.C.

§ 2612(a)(1)(D); 29 C.F.R. § 112(a)(4); RCW 49.78.220(1)(d).

       An employee’s responsibility with respect to timing of notice is somewhat

flexible. In general, an employee must provide 30 days’ advance notice of planned leave.

29 U.S.C. § 2612(e); 29 C.F.R. § 825.302(a); RCW 49.78.250. However, the

FMLA/WFLA recognize that 30 days advance notice is not always possible. In such

circumstances, an employee need only provide notice as soon as practicable. 29 U.S.C.

§ 2612(e); 29 C.F.R. § 825.302(a); RCW 49.78.250. When medical or family leave is

unforeseeable, no advance notice is required. 29 C.F.R. §§ 825.303(a), .305(b);

Lichtenstein v. Univ. of Pittsburg, 691 F.3d 294, 301 (3d Cir. 2012); Kauffman v. Fed.


                                              15
No. 35262-5-III
Espindola v. Apple King


Express Corp., 426 F.3d 880, 885-86 (7th Cir. 2005).

       When it comes to certain types of conditions, an employee’s obligations with

respect to content and timing of notice are intertwined. Maternity leave, for example, is

something generally governed by a 30-day notice requirement. RCW 49.78.250(1). 5 But

during the course of a woman’s pregnancy, the need for protected leave will sometimes

be unpredictable. See 29 C.F.R. § 825.120(a)(4). For example, an expectant mother

may find herself surprisingly debilitated by morning sickness. In such circumstances,

the FMLA/WFLA recognize the right to take unforeseeable protected leave, even when

such leave does not involve hospitalization or other direct medical supervision. 29 C.F.R.

§§ 825.115(f), .120(a)(4).

       An employee’s notice obligations generally include compliance with an

employer’s internal notification procedures. 29 C.F.R. §§ 825.302(d), .303(c), .304.

For example, an employer may require written notice or that notice be directed to a

specific individual. If an employee fails to satisfy an employer’s internal notification

procedures, FMLA/WFLA leave may be delayed or denied, regardless of whether the

employee might actually qualify for leave. 29 C.F.R. § 825.303(c).


       5
        Thirty days’ advance notice is not required if childbirth is unexpected. In
such circumstances, the employee need only provide “such notice as is practicable.”
RCW 49.78.250(1).

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No. 35262-5-III
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       But there is an important limitation to an employer’s ability to deny FMLA/WFLA

leave based on noncompliance with company policy. When an employer’s policy does

not comport with FMLA/WFLA standards for invoking leave (such as the standards for

invoking unforeseeable leave), an employee’s right to protected leave cannot be denied

based simply on noncompliance with the employer’s policy. See 29 C.F.R. § 825.304(e)

(“[T]he employer may take appropriate action under its internal rules and procedures for

failure to follow its usual and customary notification rules, absent unusual circumstances,

as long as the actions are taken in a manner that does not discriminate against employees

taking FMLA leave and the rules are not inconsistent with § 825.303(a) [allowing for

unforeseeable leave].”); see also 29 C.F.R. §§ 825.302(d), .303(c), .304(a). In

circumstances where the employer’s policy is insufficient, an employee’s notice

obligations are governed solely by the terms of the FMLA/WFLA.

       Once an employee has provided appropriately timed notice that he or she “may”

have a condition that qualifies for FMLA/WFLA leave, the burden falls on the employer

to take action. 29 C.F.R. § 825.303(b); Lichtenstein, 691 F.3d at 303-04. The

employee’s notice need not provide definitive proof of the right to take protected leave.

All that needs to be raised is “probable basis” to believe the employee is entitled to

FMLA/WFLA leave. Aubuchon v. Knauf Fiberglass, GmbH, 359 F.3d 950, 953 (7th Cir.


                                             17
No. 35262-5-III
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2004). Once this is satisfied, the employer is obliged to either grant protected leave

or investigate whether the employee’s condition qualifies for leave. 29 C.F.R.

§§ 825.301(a), .302(c); Lichtenstein, 691 F.3d at 303; Burnett v. LFW Inc., 472 F.3d 471,

480 (7th Cir. 2006).

       Application of the adequate notice requirement to Ms. Espindola

       Whether Ms. Espindola provided Apple King adequate notice of the need for

FMLA/WFLA leave is a question of fact. Lichtenstein, 691 F.3d at 303. Thus, Apple

King is entitled to summary judgment only if, viewing the record in the light most

favorable to Ms. Espindola, no reasonable fact finder could rule in her favor.

       It is undisputed that Ms. Espindola notified Apple King of her pregnancy in June

or July 2011. Given that pregnancy is the type of condition that can reasonably create the

need for unforeseeable protected leave, Ms. Espindola’s burden of providing additional

notice of incapacitation during the course of her pregnancy was at least somewhat

reduced. See 29 C.F.R. § 825.302(c) (notice that “employee is pregnant” may be

sufficient); Aubuchon, 359 F.3d at 953 (note that pregnant woman was having

complications would be sufficient, “despite the absence of details”). In like manner, once

it was aware of Ms. Espindola’s pregnancy, the expectation that Apple King would be




                                             18
No. 35262-5-III
Espindola v. Apple King


alert to Ms. Espindola’s need for unexpected protected leave was at least somewhat

enhanced.

       The record on appeal suggests at least two pertinent time periods when Ms.

Espindola provided adequate notice of the need for protected leave from work. 6 The first

time period was late July 2011. On July 20, Ms. Espindola became ill and left work early.

She subsequently produced a doctor’s note dated July 21 stating she had been prescribed

two days’ bed rest. A reasonable inference from these facts is that Ms. Espindola’s

absence on July 20 was related to the need for bed rest prescribed on July 21 and 22.

Given that bed rest is a common prescription for pregnancy-related complications, a fact

finder could determine that Ms. Espindola’s notice was sufficient to reasonably apprise

Apple King of the need for protected leave.

       The second relevant time period was December 2011. This was the last full month

of Ms. Espindola’s pregnancy. According to Ms. Espindola, she told her supervisor she

suffered from episodic debilitating pain due to kidney stones that required her to stay

home from work or leave early. Ms. Espindola’s attendance records confirm that in

December 2011, Ms. Espindola left work early on three occasions and provided same-day


       6
         It is undisputed that there were other periods for which Ms. Espindola provided
adequate notice. However, because Apple King excused those absences, they are not
relevant to our inquiry.

                                              19
No. 35262-5-III
Espindola v. Apple King


notice of an absence on one occasion. A reasonable fact finder could infer that the

absences in December were due to the episodic and unforeseeable kidney pain described

by Ms. Espindola. Particularly given Apple King’s knowledge that Ms. Espindola was

having a difficult pregnancy, 7 a reasonable fact finder could conclude that Ms.

Espindola’s notice of debilitating kidney stone pain was sufficient to place Apple King

on notice that Ms. Espindola was invoking the right to FMLA/WFLA protected leave.

See Byrne v. Avon Prods., 328 F.3d 379, 381 (7th Cir. 2003) (An employee’s unusual

behavior, alone, can provide notice that “something had gone medically wrong.”). 8

       Although the record supports a finding that Ms. Espindola provided sufficient

notice of the need for FMLA/WFLA leave in July and December of 2011, Apple King

did not provide protected leave or conduct an investigation. Instead, Apple King used

Ms. Espindola’s absences on July 20 and December 9, 19, 20, and 30 as negative factors

in its ultimate decision to terminate Ms. Espindola’s employment. Apple King assessed

Ms. Espindola a total of 11 adverse attendance points for the aforementioned absences,

causing her to exceed the maximum number of attendance points per year by 5 points.


       7
         Not only had Ms. Espindola been placed on bed rest during her pregnancy, she
was also hospitalized as a result of kidney stones and diagnosed with gestational diabetes.
       8
         Ms. Espindola also had unexcused absences in October and November. We do
not assess whether those absences were governed by the same analysis as the December
absences as it is unnecessary for purposes of this appeal.

                                            20
No. 35262-5-III
Espindola v. Apple King


       Apple King claims it was justified in assessing Ms. Espindola points for the

foregoing absences because Ms. Espindola’s leave requests did not comport with

company policy. Had Apple King’s policy provided Ms. Espindola an avenue for

claiming unforeseeable FMLA/WFLA leave, this defense would almost certainly prevail.

29 C.F.R. §§ 825.302(d), .303(c). But Apple King’s attendance policy does not account

for the FMLA/WFLA. The policy provides no explanation of how an employee would be

expected to claim unforeseeable protected leave not resulting in hospitalization. Because

Apple King’s policy was not compliant with the FMLA/WFLA, the policy provides no

defense to Ms. Espindola’s retaliation claim.

       Ms. Espindola has made a sufficient claim for retaliation under 29 C.F.R.

§ 825.220(c). As a consequence, Apple King is not entitled to summary judgment.

The trial court’s ruling to the contrary is reversed.

                                    ATTORNEY FEES

       Ms. Espindola requests attorney fees and costs pursuant to RAP 18.1, 29 U.S.C.

§ 2617(a)(3), 29 C.F.R. § 825.400(c), and RCW 49.48.030. This request is premature.

Because Ms. Espindola has not yet succeeded on her claim against Apple King, we are

not in a position to award attorney fees. If, after remand, Ms. Espindola prevails on her

FMLA/WFLA claim, she will qualify as a prevailing party and may be awarded attorney


                                              21
No. 35262-5-IH
Espindola v. Apple King


fees, including fees generated during this appeal, under 29 U.S.C. § 2617(a)(3), 29 C.F.R.

§ 825.400(c), and RCW 49.48.030.

                                     CONCLUSION

      The order on summary judgment is reversed. This matter is remanded for trial or

further proceedings consistent with the terms of this opinion.



                                             Q.
                                          Pennell, A.CJ.
WE CONCUR:




                                          Fearing, J.




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