                                                                           FILED
                            NOT FOR PUBLICATION                             JAN 27 2011

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




                            FOR THE NINTH CIRCUIT



LARRY BOECKEN, Jr.,                          No. 08-17454

              Plaintiff - Appellant,         D.C. No. 1:05-cv-00090-OWW-DLB
  v.
                                             MEMORANDUM *
GALLO GLASS COMPANY,

              Defendant - Appellee.

                   Appeal from the United States District Court
                       for the Eastern District of California
                Oliver W. Wanger, Senior District Judge, Presiding

                      Argued and Submitted January 13, 2011
                            San Francisco, California

Before: WALLACE, SILVERMAN, and TALLMAN, Circuit Judges.

       Boecken appeals from the district court’s summary judgment in favor of

Gallo Glass Co. (Gallo). The district court had jurisdiction pursuant to 28 U.S.C.

§ 1331 and we have jurisdiction over this timely appeal pursuant to 28 U.S.C.

§ 1291. We review de novo a district court’s summary judgment. Universal

Health Servs., Inc. v. Thompson, 363 F.3d 1013, 1019 (9th Cir. 2004). We affirm

in part, and reverse and remand in part.


        *
          This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Because Boecken was walking in the park and not in close and continuing

proximity to his grandmother, he was misusing his leave under the Family Medical

Leave Act (FMLA), 29 U.S.C. § 2612(a), and the California Family Rights Act

(CFRA), Cal. Gov’t Code § 12945.2(a). Tellis v. Alaska Airlines, Inc., 414 F.3d

1045, 1047 (9th Cir. 2005). Further, because there is no requirement that

companies specify which activities are and are not acceptable uses of FMLA time,

Boecken’s argument that Gallo did not provide “legally proper” notice of its

FMLA policy in this regard fails. 29 C.F.R. § 825.301(b) (2005).

      However, Boecken also contends that Gallo should have provided him

advance notice of the consequences of his alleged good faith misuse of FMLA

time. The FMLA regulation at 29 C.F.R. § 825.301(b)(1) requires that an

employer “provide the employee with written notice detailing the specific

expectations and obligations of the employee and explaining any consequences of

a failure to meet these obligations” (emphasis added). Gallo’s employee manual

does not state that Gallo could immediately terminate any employee for misusing

FMLA time. It does provide a progressive discipline policy. It also allows Gallo

to terminate someone for “[t]heft or dishonesty,” but Boecken correctly points out

that there is a material issue of fact as to whether Gallo considered Boecken

dishonest in his use of his FMLA time. Gallo does not address this argument. The



                                          2
district court also did not address this argument, likely because Boecken did not

make the argument in his summary judgment motion papers. However, Gallo

failed to object to Boecken making the argument to us, which waives any potential

waiver by Boecken. Norwood v. Vance, 591 F.3d 1062, 1068 (9th Cir. 2010) (“It

is well-established that a party can waive waiver implicitly by failing to assert it”

(internal quotation marks and citation omitted)).

      Therefore, a material fact is in dispute—whether Gallo violated Boecken’s

FMLA notice rights—that cannot be decided by summary judgment. See 29

C.F.R. § 825.301(f) (2005) (employer who fails to provide required notice cannot

take action against employee for failure to comply with employer’s requirements).

      Boecken’s Fair Employment and Housing Act claim, Cal. Gov’t Code

§ 12940, fails because, as the district court correctly decided, Boecken has not

identified a material issue of fact as to whether his firing was pretextual. Finally,

summary judgment on Boecken’s common law tort claim of wrongful discharge in

violation of public policy was correctly denied because, as set forth above,

Boecken’s termination was not predicated on a motivation that violated public

policy. Holmes v. Gen. Dynamics Corp., 22 Cal. Rptr. 2d 172, 177 n.8 (Cal. Ct.

App. 1993).

      Each party will bear its costs on appeal.



                                           3
    AFFIRMED IN PART, AND REVERSED AND REMANDED

IN PART.




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