facts here are not comparable to those in Escriba v. Foster Poultry Farms, Inc.,

743 F.3d 1236 (9th Cir. 2014), where the employee stated that she intended to

request vacation time rather than FMLA leave, and had successfully followed

company FMLA procedures fifteen times in the past.1 Escriba, 743 F.3d at 1245.

1 Moreover, Escriba was not decided on appeal from a grant of summary judgment, but rather from a denial of judgment as a matter of law, which this Court

2 18-17452 As to procedural adequacy, the possibility that Appellant’s supervisors knew

about his possible need for surgery “for months,” discussed above, forecloses

summary judgment in favor of Appellee on timeliness grounds. And, even if

Appellant did not give notice until July 19, a trier of fact could nevertheless

conclude that Appellee waived the thirty-day notice requirement by responding,

“Ok, thanks” to Appellant’s e-mail. See 29 C.F.R. § 825.304(e). With respect to

Appellee’s administrative processes, there is a genuine dispute as to whether the

requirements were “usual and customary.” See 29 C.F.R. § 825.302(d).

Appellee’s designated representative did not know whether Appellant actually

received any FMLA training, and confirmed that, although supervisors were

supposed to direct employees to the BASIC administrative system, Appellant was

not instructed to utilize BASIC in 2017. Appellant, for his part, testified and stated

in his declaration that he never received FMLA training, did not know how to

request FMLA leave, and had never heard of BASIC. 2

2. There is also a genuine dispute as to whether, assuming Appellant did make

a valid FMLA request, Appellee used that request as a negative factor in its

decision to terminate him. FMLA “regulations clearly prohibit the use of FMLA-

reviewed for substantial evidence supporting a jury verdict. Escriba, 743 F.3d at 1245-46. 2 Although Appellant utilized the BASIC procedures in 2013, he also stated that his supervisor had helped arrange that FMLA leave.

3 18-17452 protected leave as a negative factor at all.” Bachelder v. Am. W. Airlines, Inc., 259

F.3d 1112, 1131 (9th Cir. 2001). Appellant presented circumstantial evidence of a

link between his FMLA request and his termination. Aside from the temporal

proximity of as little as nine days between the two events, Appellant introduced

evidence that his supervisor (1) received the FMLA request and therefore had

notice of it (2) made the decision to suspend Appellant, ostensibly for the movie-

watching incident, (3) conducted the investigation of the incident, and (4) made

the decision to terminate Appellant’s employment. See Xin Liu v. Amway Corp.,

347 F.3d 1125, 1136 (9th Cir. 2003) (“Where termination decisions rely on

subjective evaluations, careful analysis of possible impermissible motivations is

warranted because such evaluations are particularly susceptible of abuse and more

likely to mask pretext.”) (internal quotation marks omitted).

3. No reasonable trier of fact could conclude that Appellant suffered any

prejudice from Appellee’s alleged failure to timely notify Appellant of his

eligibility for FMLA leave. Appellee is therefore entitled to summary judgment on

Appellant’s notice-based claims. See Ragsdale v. Wolverine World Wide, Inc., 535

U.S. 81, 89 (2002); Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 143

(3d Cir. 2004). Even assuming that Appellant’s lost opportunity to take advantage

of health insurance coverage implicates a right guaranteed by the FMLA, there is

no evidence that Appellant would have done anything differently had he received

4 18-17452 timely notice that he was eligible for FMLA leave.3 There is no indication, for

example, that, had Appellant been told that he was eligible for leave “months”

before August, he would have rushed to have surgery.4

Nor is there any evidence that Appellant would have acted differently if he

had received timely notice of his eligibility for FMLA leave after his July 19 e-

mail. Appellant appears to argue that, had he been timely notified that he was not

eligible for FMLA leave, he would have rushed to have surgery before his

employment and health benefits were terminated. There appears to be no dispute,

however, that Appellant was eligible for FMLA leave while he was suspended.

Thus, timely FMLA notice would not have put Appellant on notice that his job was

in jeopardy or motivated him to advance his surgery date.

For these reasons, we reverse the district court’s grant of summary

judgment, except with respect to Appellant’s notice-based claims.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

3 This is not to say that Appellant cannot seek surgery costs as part of his “negative factor” interference claim. See 29 U.S.C. § 2617(a)(1)(A)(i). 4 Indeed, at that point, Appellant himself was not sure whether surgery would be necessary.

5 18-17452