Golez v. United States Postal Service , 585 F. App'x 365 ( 2014 )

FILED
NOT FOR PUBLICATION OCT 7 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILFREDO A. GOLEZ, No. 12-56471
Plaintiff - Appellant, D.C. No. 3:09-cv-00965-AJB-
WMC
v.
UNITED STATES POSTAL SERVICE; MEMORANDUM*
PATRICK R. DONAHOE, Postmaster
General,
Defendants - Appellees.
Appeal from the United States District Court
for the Southern District of California
Anthony J. Battaglia, District Judge, Presiding
Submitted September 23, 2014**
Before: W. FLETCHER, RAWLINSON, and CHRISTEN, Circuit Judges.
Wilfredo A. Golez appeals pro se from the district court’s judgment in his
action alleging violations of the Family Medical Leave Act (“FMLA”), Title VII,
and the Rehabilitation Act arising out of his termination. We have jurisdiction
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
under 28 U.S.C. § 1291. We review de novo a district court’s conclusion of law
and for clear error its findings of fact following a bench trial. Milicevic v. Fletcher
Jones Imports, Ltd., 402 F.3d 912, 915 (9th Cir. 2005). We affirm.
The district court did not clearly err when it credited the testimony of other
witnesses over Golez’s testimony and found that Golez failed to follow defendants’
attendance and FMLA-leave policies in connection with eleven incidents of
unscheduled tardiness and an unscheduled absence from work. See Fed. R. Civ. P.
52(a)(6) (“Findings of fact . . . must not be set aside unless clearly erroneous, and
the reviewing court must give due regard to the trial court’s opportunity to judge
the witnesses’ credibility.”); Anderson v. Bessemer City, 470 U.S. 564, 573-74
(1985) (“If the district court’s account of the evidence is plausible in light of the
record, the court of appeals may not reverse it even though convinced that had it
been sitting as the trier of fact, it would have weighed the evidence differently.”).
The district court did not clearly err in finding that Golez did not prove by a
preponderance of the evidence that defendants used his taking of FMLA leave on
May 11, 2008 as a negative factor in terminating his employment. See Escriba v.
Foster Poultry Farms, Inc., 743 F.3d 1236, 1243 (9th Cir. 2014) (setting forth the
elements of a prima facie case of FMLA interference, which include the
requirement that the employee provide sufficient notice of the intent to take FMLA
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leave).
The district court did not abuse its discretion when it excluded the doctor’s
certification regarding the seriousness of Golez’s mother’s health. See GCB
Commc’ns, Inc. v. U.S. S. Commc’ns, Inc., 650 F.3d 1257, 1262 (9th Cir. 2011)
(setting forth the standard of reviewing and explaining that evidentiary rulings
should not be reversed unless “it is more probable than not than an error, if any,
tainted the outcome”).
Contrary to Golez’s contention, the district court applied the correct version
of 29 C.F.R. § 825.303 to the eleven incidents of unscheduled tardiness and an
unscheduled absence from work which occurred in 2008.
We do not consider issues that are not specifically and distinctly raised and
argued in Golez’s opening brief. See Miller v. Fairchild Indus., Inc., 797 F.2d 727,
738 (9th Cir. 1986).
Golez’s motion to submit exhibits with his opening brief, filed on February
4, 2013, is granted.
AFFIRMED.
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