                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        AUG 1 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

ANTHONY SHELTON,                                No.    15-35070

                Plaintiff-Appellant,            D.C. No. 2:14-cv-00234-TSZ

 v.                                             MEMORANDUM*

THE BOEING COMPANY, a Delaware
corporation,

                Defendant-Appellee.

                   Appeal from the United States District Court
                     for the Western District of Washington
                    Thomas S. Zilly, District Judge, Presiding

                       Argued and Submitted July 14, 2017
                              Seattle, Washington

Before: FARRIS, MURPHY,** and NGUYEN, Circuit Judges.

      Anthony Shelton appeals the district court’s denial of his motion for partial

summary judgment and grant of summary judgment in favor of Boeing on his

Washington State Family Leave Act (“WFLA”) interference claim. Boeing



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Michael R. Murphy, United States Circuit Judge for
the U.S. Court of Appeals for the Tenth Circuit, sitting by designation.
terminated Shelton under its progressive discipline policy after he received three

corrective action memos (“CAMs”) in the same infraction category. Boeing

administered the first two CAMs for Shelton’s refusal to comply with his

manager’s instructions to notify her before any absence; some of these absences

were covered by the federal Family and Medical Leave Act (“FMLA”). We have

jurisdiction under 28 U.S.C. § 1291. We review the district court’s grant of

summary judgment de novo. Szajer v. City of Los Angeles, 632 F.3d 607, 610 (9th

Cir. 2011). We affirm.

      The WFLA is patterned on and construed in accordance with the FMLA.

Wash. Rev. Code § 49.78.410. The FMLA entitles employees to a certain amount

of leave for protected medical reasons. Sanders v. City of Newport, 657 F.3d 772,

777 (9th Cir. 2011). Employers may not “interfere with, restrain, or deny” the

exercise of this right. 29 U.S.C. § 2615(a)(1); Wash. Rev. Code § 49.78.300(a).

To demonstrate interference, the plaintiff must show by a preponderance of the

evidence that his taking of FMLA leave was a “negative factor” in his employer’s

decision to deny him FMLA leave or take an adverse employment action against

him. See Bachelder v. Am. W. Airlines, Inc., 259 F.3d 1112, 1125 (9th Cir. 2001).

An employee must comply with the employer’s usual and customary policies for

requesting leave, absent unusual circumstances. 29 C.F.R. § 825.303(c).




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      In this case, the district court did not err in granting summary judgment for

Boeing because no reasonable jury could find that Shelton’s FMLA leave was a

negative factor in his termination. Boeing submitted evidence showing that it

administered the first two CAMs to Shelton because he refused to comply with his

manager’s instructions to contact her directly before taking any absence, not

because he exercised his right to FMLA leave. And, Shelton provided no

additional evidence that could possibly establish that the nature of his FMLA leave

was a negative factor, or even a factor at all, in Boeing’s decision to discipline him.

Cf. Throneberry v. McGehee Desha Cty. Hosp., 403 F.3d 972, 980 (8th Cir. 2005)

(an employer may discipline an employee for misconduct associated with FMLA

leave if it would have imposed the same discipline if the employee had taken a

different form of leave).

      Furthermore, Shelton fails to establish that he complied with Boeing’s usual

and customary policy for requesting leave. The Shared Accountability section of

the Leaves of Absence Policy Handbook (“LOA Handbook”) explains that

“employees needing to take any absence should always speak to their manager”;

the appendix of the LOA Handbook says managers must be contacted in the event

of FMLA absences; and the Puget Sound Attendance Guidelines explain that

“unscheduled absences must be reported to the employee’s organization on or

before the day that the absence occurs.” (Emphasis added). To the extent that the


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written policies may be inconsistent with the LOA Handbook’s FMLA policies in

Section 7, there is no question that Shelton knew he needed to report his absences

to his manager. He was reminded on multiple occasions. Nothing in the FMLA

prohibits an employer from disciplining an employee for noncompliance with the

company’s usual and customary attendance policies. See Bones v. Honeywell Int’l,

Inc., 366 F.3d 869, 878 (10th Cir. 2004).

      Additionally, no unusual circumstances justified Shelton’s noncompliance.

He failed to proffer evidence that anything outside his control prevented him from

following the policy, or that he was reasonable in disregarding his manager’s clear

and repeated instructions to notify her before any absence. See 29 C.F.R.

§ 825.302(d).

      Finally, there is no merit to Shelton’s argument that 29 C.F.R. § 825.304(e)

mandates that an employer that grants FMLA leave automatically waives its ability

to discipline an employee for refusal to comply with attendance policies. Shelton

cites no authority to support this interpretation.

      AFFIRMED.




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