Denny

dissenting:

On July 4, 1999, Jeff Denny awoke with severe back pain due to an existing work-related injury. Denny called his supervisor, Mr. Ritter, at the Union Pacific Railroad Company and asked for the day off as part of his family leave, guaranteed under both the federal Family Medical Leave Act (“FMLA”) and the Oregon Family Leave Act (“OFLA”). Over the phone, Ritter denied Denny’s request. Denny asked Ritter to put the denial in writing, and a little over an hour later, Denny arrived at his workplace to discuss the leave with Ritter. Denny’s wife drove him to work because he was in too much pain to drive himself. After a brief discussion in Ritter’s office, Denny, on the advice of his union representative, went downstairs to print out some documents. Ritter also moved downstairs and, a few minutes later, a heated argument broke out between Ritter and Denny over the matter of the leave.

*552 Union Pacific claims, and the District Court and majority agree, that Denny was fired because of his actions during this argument. Denny swore at Ritter and, at one point, asked to move the argument “outside.” These actions, however, stemmed directly from Denny’s legitimate request for…

MEMORANDUM *

Plaintiff Jeff Denny appeals from an adverse judgment on his claims under the federal Family and Medical Leave Act of 1993 (“FMLA”) and the Oregon Family Leave Act (“OFLA”).

1. After a four-day trial, the district court found, with respect to Plaintiffs claim under 29 U.S.C. § 2615 (a)(1), that Plaintiffs request for medical leave was not a “negative factor” in the decision to terminate him, Bachelder v. Am. W. Airlines, Inc., 259 F.3d 1112, 1124-25 (9th Cir.2001), and that Defendant Union Pacific Railroad had fired Plaintiff because of a heated exchange with his supervisor, during which he swore at his supervisor and asked his supervisor to “take it outside.” The court’s factual findings are not clearly erroneous. See Anderson v. City of Bessemer City, 470 U.S. 564, 574 , 105 S.Ct. 1504 , 84 L.Ed.2d 518 (1985) (holding that the fact-finder’s choice between two permissible views of the evidence cannot be clearly erroneous).

*551 2. The district court’s refusal to make a finding as to what Plaintiff actually-said does not make the findings clearly erroneous. The question is not what Plaintiff actually said, but only whether Defendant fired him because of what…