NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS DEC 23 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

CHRISTOPHER KURAMOTO, No. 21-17004

Plaintiff-Appellant, D.C. No. 2:20-cv-00113-SMB

v.

MEMORANDUM*

HEART & VASCULAR CENTER OF

ARIZONA PC,

Defendant-Appellee.

Appeal from the United States District Court for the District of Arizona Susan Brnovich, District Judge, Presiding

Submitted December 5, 2022** Phoenix, Arizona

Before: WARDLAW and BUMATAY, Circuit Judges, and SCHREIER,*** District Judge.

Christopher Kuramoto (Kuramoto) appeals the district court’s grant of

* 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). *** The Honorable Karen E. Schreier, United States District Judge for the District of South Dakota, sitting by designation. partial summary judgment and partial judgment after a bench trial in favor of Heart

& Vascular Center of Arizona (the “Center”). Before the district court, Kuramoto,

a former Center employee, raised claims under the Family and Medical Leave Act

(FMLA) and the Arizona Fair Wages and Healthy Families Act. He asserted that

the Center unlawfully interfered with him taking leave under the FMLA and

retaliated against him in violation of state law for taking earned paid sick leave

following a car accident.1 On appeal, Kuramoto argues that the district court

erroneously concluded that he failed to return a health care provider certification

and that the Center had overcome the legal presumption of unlawful retaliation for

his use of earned paid sick leave. We have jurisdiction under 28 U.S.C. § 1291,

and we affirm.

1. The district court properly granted summary judgment on Kuramoto’s

FMLA interference claim, holding that FMLA regulations permitted the Center to

require he submit a health care provider certification on its chosen form and that

the Center was not required to provide Kuramoto with a notice of deficiency and

opportunity to cure. Under the FMLA, employers may request a health care

provider certification that supports an employee’s need for leave, and FMLA

regulations give employers the option of requiring that this certification be

1 Before the district court, Kuramoto also brought a claim under the Arizona Employment Protection Act. Kuramoto does not appeal the district court’s grant of summary judgment on this claim, and we do not address this issue on appeal.

2 submitted on a Department of Labor form or on another form that collects the same

information. 29 U.S.C. § 2613(a); 29 C.F.R. § 825.306(b). Although Kuramoto

submitted various medical records and doctor’s notes, he concedes that he never

returned the requested certification form, even after prompted to do so multiple

times by the Center. Because he never submitted a certification, the Center was

not required to provide him written notice of the certification’s deficiencies and

seven days to cure any deficiencies, as is required for incomplete and insufficient

certifications. 29 C.F.R. § 825.305(c). Thus, his leave was not protected by the

FMLA. 29 C.F.R. § 825.313(b).

2. The district court did not clearly err in finding that the Center

presented clear and convincing evidence to overcome the legal presumption of

unlawful retaliation under the Fair Wages and Healthy Families Act. Under the

Act, when an adverse action is taken against an employee within 90 days of the

employee using earned paid sick leave, such action is presumptively retaliatory.

Ariz. Rev. Stat. § 23-364(B). The employer can overcome this presumption with

“clear and convincing evidence that such action was taken for other permissible

reasons.” Id. Kuramoto does not dispute that between January 16 and February

19, 2019, he missed more than 200 hours of work that was not approved FMLA

leave or covered by other paid leave. The Center has consistently asserted that this

was the reason for his termination, and it has corroborated this explanation through

3 contemporaneous documentary evidence, including emails and Kuramoto’s

timesheets and leave statements. This clear and convincing evidence is sufficient

to overcome the legal presumption of unlawful retaliation under the Fair Wages

and Healthy Families Act.

AFFIRMED.

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