NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUN 26 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROSANNA M. PEREZ, No. 17-55517

Plaintiff-Appellant, D.C. No. 2:16-cv-01681-DSF-AJW

v.

MEMORANDUM*

VITAS HEALTHCARE CORPORATION,

a Delaware corporation, and VITAS

HEALTHCARE CORPORATION OF

CALIFORNIA, a Delaware corporation,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Dale S. Fischer, District Judge, Presiding

Argued and Submitted June 7, 2018 Pasadena, California

Before: D.W. NELSON and CHRISTEN, Circuit Judges, and SHEA,** District Judge.

Plaintiff Rosanna Perez appeals the district court’s grant of VITAS

Healthcare’s motion for summary judgment. In a diversity case, Perez brought

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Edward F. Shea, United States District Judge for the Eastern District of Washington, sitting by designation. claims for wrongful termination and failure to accommodate under California’s

Fair Employment and Housing Act (“FEHA”) as well as claims for wrongful

termination in violation of public policy and breach of the implied covenant of

good faith and dealing. We review the district court’s grant of summary judgment

de novo, Merrick v. Hilton Worldwide, Inc., 867 F.3d 1139, 1145 (9th Cir. 2017),

and we affirm.

1. The district court did not err by granting summary judgment on Perez’s

FEHA wrongful termination claim. The record evidence is very clear that the two

VITAS employees who made the decision to terminate Perez had no knowledge of

her cancer diagnosis. This absence of evidence is fatal to Perez’s claim. See Cal.

Gov’t Code § 12940(a) (prohibiting adverse employment actions “because of

. . . physical disability [or] medical condition”) (emphasis added); Morgan v.

Regents of Univ. of Cal., 88 Cal. App. 4th 52, 73 (2000) (“In the absence of

evidence that the individuals who denied appellant employment were aware of his

past filing of a grievance, the causal link necessary for a claim of retaliation can

not be established.”).

Even if Perez could show VITAS had knowledge of her cancer diagnosis,

her claim still fails because VITAS met its burden to provide a “legitimate,

nondiscriminatory reason” for her termination and she did not provide any specific,

2 17-55517 substantial evidence of pretext. Nealy v. City of Santa Monica, 234 Cal. App. 4th

359, 378 (2015).

2. The district court did not err by granting summary judgment on Perez’s

FEHA reasonable accommodation claim. After her surgery, Perez returned to work

with a note from her surgeon, which she obtained at VITAS’ request, indicating

she could work with no limitations or restrictions. She stated in her deposition that

she felt “great” and was able to perform “100 percent” of her job duties, and she

did not request any type of accommodation. Because Perez did not request any

accommodations, communicate any limitations, or even appear to have any

limitations after she returned from surgery, VITAS had no duty under FEHA to

provide her an accommodation. See King v. United Parcel Serv., Inc., 152 Cal.

App. 4th 426, 443 (2007) (holding employer had no duty to accommodate

employee who returned to work with a doctor’s note releasing him back to “regular

duties and hours” and who admitted he was able to “get the job done”).

3. The district court did not err by refusing to consider Perez’s claim for

failure to investigate her request for medical leave under the California Family

Rights Act (“CFRA”) because it was advanced for the first time in opposition to

summary judgment. Perez likely waived this claim by failing to plead the

“necessary factual averments” with respect to the “material elements” of the

underlying legal theory. Wasco Prod., Inc. v. Southwall Techs., Inc., 435 F.3d 989,

3 17-55517 992 (9th Cir. 2006). Although Perez’s complaint does list a claim for failure to

provide reasonable accommodation, it does not mention Perez’s alleged post-

surgery request for medical leave — upon which the CFRA violation is premised.

Id. (“Simply put, summary judgment is not a procedural second chance to flesh out

inadequate pleadings.”); but see Desertrain v. City of Los Angeles, 754 F.3d 1147,

1154 (9th Cir. 2014) (holding district court abused its discretion by failing to

construe matter raised in opposition to summary judgment “as a request pursuant

to rule 15(b) . . . to amend the pleadings out of time”).

Even if the district court did err by failing to consider Perez’s CFRA claim,

that error was harmless because the claim fails on the merits. Not every request for

medical leave will trigger the CFRA. An employee must “provide at least verbal

notice sufficient to make the employer aware that the employee needs CFRA-

qualifying leave, and the anticipated timing and duration of the leave.” Cal. Code

Regs. tit. 2, § 11091. For a CFRA claim to survive summary judgment, “a

reasonable trier of fact” must be able to find that notice was given. Avila v. Cont’l

Airlines, Inc., 165 Cal. App. 4th 1237, 1255.

For the same reasons that Perez’s actions failed to trigger VITAS’ duty to

accommodate, she failed to provide adequate notice under CFRA. Upon her return

to work, Perez informed three VITAS employees that she would need time off

sometime in the future for additional treatment, but she did not provide any

4 17-55517 information on the “anticipated timing or duration” of her future treatment. Cal.

Code Regs. tit. 2, § 11091. Indeed, her treatment was not scheduled until after her

employment was terminated. Because Perez failed to provide this information, no

reasonable trier of fact could find she gave sufficient notice to trigger a duty under

CFRA.

4. Because we hold the district court properly granted summary judgment on

Perez’s CFRA and FEHA claims, her claim for wrongful termination in violation

of public policy also necessarily fails.

5. Perez provides no evidence to overcome the presumption that her

employment agreement was at-will. Thus, her claim for breach of the implied

covenant of good faith and dealing fails. See Foley v. Interactive Data Corp., 47

Cal. 3d 654, 680 (1988).

AFFIRMED.

5 17-55517