NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JAN 9 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

SARAH RODRIGUEZ, No. 17-16262

Plaintiff-Appellant, D.C. No. 4:16-cv-03607-PJH

v.

MEMORANDUM*

AKIMA INFRASTRUCTURE SERVICES,

LLC and AKIMA, LLC,

Defendants-Appellees.

Appeal from the United States District Court for the Northern District of California Phyllis J. Hamilton, Chief Judge, Presiding

Argued and Submitted December 20, 2018 San Francisco, California

Before: M. SMITH, NGUYEN, and BENNETT, Circuit Judges.

Sarah Rodriguez appeals the district court’s order granting summary

judgment in favor of her former employer, Akima Infrastructure Services, LLC and

Akima, LLC (together, “Akima”). We have jurisdiction under 28 U.S.C. § 1291.

Reviewing de novo, see Bravo v. City of Santa Maria, 665 F.3d 1076, 1083 (9th

Cir. 2011), we reverse and remand.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Rodriguez argues that a genuine dispute of material fact exists regarding

whether Akima replaced her while she was on leave under the Family and Medical

Leave Act (“FMLA”), 29 U.S.C. §§ 2601 et seq. We agree.

Rodriguez is entitled to restoration to her position under 29 U.S.C.

§ 2614(a)(1), which means a “return[] to the same position the employee held

when leave commenced, or to an equivalent position . . . even if the employee has

been replaced or his or her position has been restructured to accommodate the

employee’s absence.” 29 C.F.R. § 825.214. There is no dispute that while

Rodriguez was on protected leave for her pregnancy, Akima suffered a substantial

decline in its business that forced it to restructure. Akima argues that it eliminated

Rodriguez’s position during this restructure.

Viewing the evidence in the light most favorable to Rodriguez, Bravo, 665

F.3d at 1083, however, a genuine dispute of fact remains as to whether Rodriguez

was replaced by Peter Menig. Despite the differences in pay and job titles between

Rodriguez and Menig, Rodriguez contends that they essentially performed the

same recruiting tasks, with one exception for her minimal participation in new-hire

orientations. Rodriguez also claims that prior to her leave, her supervisor informed

her that Akima would hire a replacement with sufficient overlap so that Rodriguez

could train the replacement. Based on that understanding, Rodriguez emailed

others at Akima that Menig would be taking over her responsibilities. Rodriguez’s

2 testimony creates a sufficient, triable question of fact to survive summary

judgment.

The parties agree that Rodriguez’s remaining claims rise and fall with the

FMLA claim. See Rogers v. Cty. of Los Angeles, 130 Cal. Rptr. 3d 350, 355 (Cal.

Ct. App. 2011) (explaining that the FMLA and CFRA “contain nearly identical

provisions”); Merrick v. Hilton Worldwide, Inc., 867 F.3d 1139, 1150 (9th Cir.

2017) (holding that wrongful termination requires a violation of public policy

“embodied in statute”).

REVERSED AND REMANDED.

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