NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAY 19 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JEANETTE JERGENS, No. 21-35688

Plaintiff-Appellant, D.C. No. 4:20-cv-00015-BMM

v.

MEMORANDUM*

MARIAS MEDICAL CENTER; BOARD

OF COUNTY COMMISSIONERS OF

TOOLE COUNTY; CINDY LAMB, in her individual capacity, Severally, or in the Alternative, Jointly,

Defendants-Appellees.

Appeal from the United States District Court for the District of Montana Brian M. Morris, District Judge, Presiding

Argued and Submitted April 13, 2022 San Francisco, California

Before: NELSON and BYBEE, Circuit Judges, and RAKOFF,** District Judge.

This case arises out of a dispute between plaintiff-appellant Jeanette Jergens

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Jed S. Rakoff, United States District Judge for the Southern District of New York, sitting by designation. and her former employer, defendant-appellee Marias Medical Center (“MMC”).

MMC placed Jergens on paid administrative leave in July 2015 while it conducted

an investigation into workplace misconduct; in August 2015, based on that

misconduct investigation, MMC terminated Jergens’s employment. Jergens filed

piecemeal litigation in response: a suit in 2015 bringing state law tort and wrongful

termination claims, which ended in a jury verdict for Jergens (Jergens I); a suit in

2018 bringing state law discrimination claims, which ended in a summary judgment

grant in favor of defendants that Jergens did not appeal (Jergens II); and this suit,

filed in 2020, alleging that defendants violated the Family and Medical Leave Act

(“FMLA”) and Due Process Clause of the U.S. Constitution.

We review de novo the district court’s summary judgment grant in favor of

defendants-appellees on both claims. See Rene v. MGM Grand Hotel, Inc., 305 F.3d

1061, 1064 (9th Cir. 2002) (en banc). We affirm.

Summary judgment in favor of defendants-appellees on Jergens’s FMLA

claim was proper on at least three grounds: Jergens failed to show prejudice to her

FMLA rights, the claim was time-barred, and the claim was barred based on the

doctrine of res judicata.1

1 Contrary to Jergens’s argument on appeal, the district court concluded (correctly) that defendant Cindy Lamb was entitled to qualified immunity on the due process claim, not on the FMLA claim; the district court’s summary judgment grant on the FMLA claim applied to all defendants, including Lamb.

2 21-35688 First, Jergens failed to show prejudice to her FMLA rights. See Ragsdale v.

Wolverine World Wide, Inc., 535 U.S. 81, 89 (2002) (holding that 29 U.S.C. § 2617’s

right of action for an FMLA violation “provides no relief unless the employee has

been prejudiced by the violation”). Even assuming that MMC violated the FMLA,

MMC provided Jergens with paid leave that was more generous than the leave

Jergens was guaranteed under the FMLA (which would have been unpaid and would

have run concurrent with vacation time). 29 U.S.C. § 2612(a). While a jury found

that Jergens’s termination violated state employment law, Jergens does not argue

that she was fired for being eligible to take FMLA leave, and the FMLA does not

provide employees with blanket immunity from termination. See Liu v. Amway

Corp., 347 F.3d 1125, 1132 (9th Cir. 2003). Furthermore, Jergens’s argument on

appeal—that the inclusion of a letter from her doctor in the documents attached to

the report of the investigation into her workplace misconduct—does not state a

violation of the FMLA, and thus does not show that her termination constitutes

prejudice to her FMLA rights.

Second, Jergens’s FMLA claim is time-barred. Any action under the FMLA

must be brought within two years “after the date of the last event constituting the

alleged violation for which the action is brought,” or, for a willful violation, within

three years. 29 U.S.C. § 2617(c)(1)–(2); see also Olson v. United States by and

through Dep’t of Energy, 980 F.3d 1334, 1338–39 (9th Cir. 2020). Whether or not

3 21-35688 the statute of limitations is two or three years, Jergens’s FMLA claim is time-barred.

Under any logical construction, the “last event constituting the alleged violation” is

the date of Jergens’s termination—August 28, 2015. Jergens provides no support for

her argument that a discovery rule applies to her FMLA claim; accordingly, her

argument that the statute of limitations began to run on February 28, 2017 (when she

learned that her employer had received a letter from her doctor about her medical

condition) fails.

Third, Jergens’s FMLA claim is barred by res judicata. Because the prior

proceedings were in Montana state court, we apply Montana’s doctrine of res

judicata. See Adams Bros. Farming, Inc. v. County of Santa Barbara, 604 F.3d 1142,

1148 (9th Cir. 2010). Under Montana law, res judicata bars a party from litigating

claims the party raised or could have raised in a prior action if (1) the parties or their

privies are the same; (2) the subject matter is the same; (3) the issues are the same,

or could have been raised in the previous action; (4) the capacities of the parties are

the same in reference to the subject matter and issues raised; and (5) the previous

action ended with a final judgment on the merits. See Brilz v. Metro. Gen. Ins. Co.,

285 P.3d 494, 501 (Mont. 2012).

All five elements are satisfied here. The parties are the same.2 The subject

2 While Lamb was not a party to the previous cases, Lamb is in privity with her employer, MMC, for purposes of these claims against the employer arising out of a

4 21-35688 matter is the same: the termination of Jergens’s employment. And although Jergens

did not raise her FMLA claim in either prior case, she could have: she knew or should

have known when her employment was terminated on August 28, 2015, that she was

not directly offered FMLA leave; she was represented by counsel by August 19,

2016 and throughout Jergens I and II; and she received her right-to-sue notice on

her discrimination claims over three months before trial in Jergens I and nine months

before she sought to amend her complaint in Jergens II. Next, the capacity of the

parties is the same in relation to the same subject matter and issues raised. Finally,

both previous cases ended in final judgment on the merits: Jergens I in a jury verdict

for Jergens, and Jergens II in a summary judgment grant in favor of the defendants

that Jergens did not appeal.

Summary judgment in favor of defendants-appellees on Jergens’s due process

claim was likewise proper on at least two grounds: the claim fails as a matter of law

and is barred based on the doctrine of res judicata.

First, Jergens’s procedural due process claim fails as a matter of law because

she identifies neither a constitutionally protected liberty or property interest nor a

denial of adequate procedural protections. See McQuillion v. Duncan, 306 F.3d 895,

disputed termination. See Adams v. Two Rivers Apartments, LLLP, 444 P.3d 415, 420 (Mont. 2019) (“Privity exists where two parties are so closely aligned in interest that one is the virtual representative of the other.” (citation and quotation marks omitted)).

5 21-35688 900 (9th Cir. 2002). Jergens identifies no support for the existence of a constitutional

right to prompt discovery in civil litigation. Even assuming arguendo that such a

right were constitutionally protected, Jergens was not deprived of that right: she

received all discovery materials 442 days before trial in Jergens I, with ample time

to add new claims, depose necessary witnesses, or undertake additional pretrial

discovery. Neither was Jergens denied adequate procedural protections: she had

recourse to the remedial measures authorized by the Montana Rules of Civil

Procedure, none of which she pursued.

Second, Jergens’s due process claim was barred by res judicata. The analysis

parallels that discussed above for the FMLA claim, though it is even clearer that

Jergens could have brought her due process claim previously: Jergens’s argument

that her procedural due process rights were violated is based on the delayed

disclosure of the doctor’s letter and investigation report—a disclosure that occurred

on February 28, 2017, several months before Jergens filed her complaint in Jergens

II.

AFFIRMED.

6 21-35688