Marwan Aboulhosn v. Merrill Lynch Pierce Fenner

MEMORANDUM

Marwan Aboulhosn appeals the district court’s grant of summary judgment in favor of Merrill Lynch, Pierce, Fenner, & Smith, Inc. (“Merrill Lynch”) in his action under the Family and Medical Leave Act (“FMLA”). We have jurisdiction under 28 U.S.C. § 1291 , and we reverse and remand.

1. The district court did not err in determining whether Aboulhosn was entitled to leave. Even though questions Of fact remain as to whether Aboulhosn timely submitted the medical certification required under the FMLA, see 29 C.F.R. § 825.305 (2010), he must nonetheless set forth a prima facie case of eligibility. See Escriba v. Foster Poultry Farms, Inc., 743 F.3d 1236, 1243 (9th Cir.2014).

2. The district court erred in granting summary judgment on Aboulhosn’s claim of interference with the right to take FMLA leave.

A. Issues of material fact exist with regard to whether Aboulhosn’s father had a serious medical condition. “A serious health condition involving continuing treatment by a health care provider includes ... [incapacity and treatment ... [or] ... [e]hronic conditions.” See 29 C.F.R. § 825.115 (a), (c). Viewing the evidence in the light most favorable to Aboulhosn, the medical…