FILED

NOT FOR PUBLICATION

APR 19 2021

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

CAROLYN MERRILL-SMITH, in her No. 20-15862 sole and separate capacity, D.C. No. 2:16-cv-02677-ROS Plaintiff-Appellant,

v. MEMORANDUM*

LA FRONTERA ARIZONA EMPACT-

SPC, a nonprofit organization,

Defendant-Appellee,

and

DENIS THIRION; et al.,

Defendants.

Appeal from the United States District Court for the District of Arizona Roslyn O. Silver, District Judge, Presiding

Submitted April 15, 2021** San Francisco, California

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Before: THOMAS, Chief Judge, and R. NELSON and HUNSAKER, Circuit Judges.

Plaintiff Carolyn Merrill-Smith appeals district court orders dismissing part

of her Family Medical Leave Act (FMLA) claim for failure to state a claim and

granting summary judgment for defendant La Frontera Arizona EMPACT-SPC (La

Frontera) on a second part of the claim. She also challenges the district court’s

decision not to grant her leave to amend her complaint a third time. We have

jurisdiction under 28 U.S.C. § 1291, and we affirm.

We review a grant of summary judgment and a dismissal for failure to state a

claim de novo. Scalia v. Emp. Sols. Staffing Grp., LLC., 951 F.3d 1097, 1101 (9th

Cir. 2020). We review a denial of leave to amend a complaint for abuse of

discretion. United States v. United Healthcare Ins. Co., 848 F.3d 1161, 1172 (9th

Cir. 2016). Because the parties are familiar with the history of this case, we need

not recount it here.

The district court properly granted summary judgment to La Frontera on

Merrill-Smith’s claim for FMLA interference based on her placement in part-time

“pool” status in August 2013. To survive summary judgment on an FMLA claim,

an employee must show there is a genuine dispute of fact regarding whether her

employer’s alleged FMLA violation prejudiced her. Ragsdale v. Wolverine World

Wide, Inc., 535 U.S. 81, 89 (2002); Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (internal quotations and citation omitted). Merrill-Smith presented no

evidence that La Frontera’s decision to give her five months of informal leave

while nominally in pool status, rather than 12 weeks of formal FMLA leave,

prejudiced her. See 29 U.S.C. § 2612(a)(1).

The district court also properly dismissed Merrill-Smith’s claim for FMLA

interference during the September 2013-to-January 2014 period when she was in

pool status at La Frontera (the “pool period”). Merrill-Smith failed to allege

FMLA eligibility during the pool period because she did not allege that she worked

the requisite 1,250 hours at La Frontera in the twelve months preceding any date in

that period. See 29 U.S.C. § 2611(2)(A)(ii). We decline to reach Merrill-Smith’s

argument, raised for the first time on appeal, that her allegation that she worked

1600 hours in the year preceding her placement into the pool suffices to establish

her FMLA eligibility throughout the pool period. See El Paso City v. Am. W.

Airlines, Inc. (In re Am. W. Airlines, Inc.), 217 F.3d 1161, 1165 (9th Cir. 2000)

(“Absent exceptional circumstances, we generally will not consider arguments

raised for the first time on appeal.”).

The district court properly exercised its discretion in declining to grant

Merrill-Smith leave to amend her complaint for a third time where the court had

previously instructed Merrill-Smith on the required allegations as to hours worked. See Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992); Ascon Props., Inc. v.

Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989).

We decline to reach Merrill-Smith’s argument, raised for the first time on

appeal, that La Frontera denied her reinstatement to her previous position in

violation of the FMLA. See In re Am. W. Airlines, Inc., 217 F.3d at 1165.

Appellant’s motion, Dkt. No. 6, is granted.

AFFIRMED.