Xin Liu v. Amway Corporation Does 1-50 Inclusive

347 F.3d 1125 XIN LIU, Plaintiff-Appellant, v. AMWAY CORPORATION; Does 1-50 Inclusive, Defendants-Appellees. No. 01-57013. United States Court of Appeals, Ninth Circuit. Argued and Submitted October 8, 2002 — Pasadena, California. Filed October 30, 2003. COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED Ray Keramati, Western Legal Group, APC, San Diego, California, for the plaintiff-appellant. Maria K. Aarvig, Creason & Aarvig, LLP, for the defendant-appellee. Appeal from the United States District Court for the Central District of California; Virginia A. Phillips, District Judge, Presiding. D.C. No. CV-00-00256-VAP. Before: Harry PREGERSON, Pamela Ann RYMER, and M. Margaret McKEOWN, Circuit Judges. PREGERSON, J., delivered the opinion of the Court as to Parts I, IIA, IIB, IIC, and III in which McKEOWN, J., joined. RYMER, J., delivered the opinion of the Court as to Part IID, in which McKEOWN, J., joined. PREGERSON, J., filed a dissenting opinion as to Part IID. RYMER, J., filed an opinion concurring as to Parts I, IIC, and III, and dissenting as to Parts IIA and IIB. OPINION 1 PREGERSON, Circuit Judge, with whom McKEOWN, Circuit Judge,…

OPINION

with whom McKEOWN, Circuit Judge, joins.

Xin Liu appeals the district court’s grant of summary judgment in favor of her former employer, Amway Corporation, 1 on her claims of sex discrimination and retaliation under Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000e — 2000e-17 (2003), and the California Fair Employment and Housing Act (FEHA), Cal. Gov’t Code §§ 12900-12996; interference with protected leave under the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2612 (a), and its state counterpart, the California Family Rights Act (CFRA), Cal. Gov’t Code § 12945.2(a); breach of implied-in-fact contract and covenant of good faith and fair dealing; and violation of California public policy. The district court held that Liu failed to raise a genuine issue of material fact as to whether Amway’s…

dissenting in part.

I dissent from the majority’s opinion on Liu’s Title VII and FEHA retaliation and discrimination claims because, as I read the record and briefs in this case, there is no doubt that Liu appealed the district court’s ruling dismissing those claims. Because I believe that the ruling was incorrect, I would reverse the district court’s order dismissing Liu’s Title VII and FEHA claims. The district court granted summary judgment for Amway on all of Liu’s claims and analyzed them together. By noticing the appeal of the entire district court’s order, Liu’s notice of appeal preserved her Title VII and FEHA claims. Her opening brief contrasts the standard of review for her Title VII and FEHA claims to the applicable standard for her other claims and, though not citing Title VII’s and FEHA’s statutory provisions, analyzes her claims under Title VII and FEHA on pages 36-48. She argues that Amway violated Title VII and FEHA by discriminating against her on the basis of sex and pregnancy and by retaliating against her when she complained about Tran’s refusal to grant her leave. 1 I would reverse the district court’s grant of summary judgment on those claims.

1.…

concurring in part and dissenting in part.

I see the FMLA claim differently from the majority opinion, although I concur in the disposition of claims for breach of an implied-in-fact contract and the covenant of good faith and fair dealing.

Liu never argued in the district court that “mischaracterizing” her leave as personal leave rather than FMLA leave constituted “interference” with her rights to FMLA leave. In any event, Amway *1145 granted Liu’s requests for leave, albeit for less time than she wanted. How her leave was labeled could not have made any difference in this case, because she was on authorized leave when she was terminated (November 18, 1998) as a part of a reduction in force. Liu does not dispute the bona fides of the reduction in force. Thus, as the district court saw it (and so do I), Amway could still have terminated Liu even if she had been on leave designated as FMLA leave and regardless of whether she had been on leave through December.

For the same reason, I disagree that reversal is required even if the district court should not have treated Liu’s remaining claims as interrelated discrimination claims based on retaliation — and so subject to the…