Xin Liu v. Amway Corporation Does 1-50 Inclusive , 347 F.3d 1125 ( 2003 )

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

PREGERSON, Circuit Judge,

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 reasons for terminating her were pretextual and, therefore, granted Amway summary judgment on Liu’s retaliation and discrimination claims under Title VII and FEHA. In addition, the district court held that Amway had not interfered with Liu’s FMLA/CFRA leave because Liu was on leave when she was terminated. The court also dismissed her remaining claims on various state grounds.

We reverse the district court’s grant of summary judgment on Liu’s FMLA, CFRA, and violation of California public policy claims. We affirm the district court’s grant of summary judgment on Liu’s breach of her implied-in-fact contract claim, breach of the covenant of good faith and fair dealing claim, and Title VII and FEHA retaliation and discrimination claims. We remand to the district court for further proceedings in accordance with this opinion.

1. BACKGROUND

In May 1997, Xin Liu was the first scientist hired in the Concentrate Development Department of the Nutrilite Division of Amway Corporation (“the Department”). She was the most experienced member of her department consisting of four scientists. Her primary duties were the research and development of plant concentrates.

In October 1997, Liu’s supervisor, David Groh, the group leader of the department, left the Nutrilite division. He was replaced by Kha Tran who then became Liu’s supervisor.

On June 27,1998, Liu went on maternity leave. She delivered her baby in early August and set her expected return date as September 19, 1998. While she was on leave, Tran assumed responsibility for her work. In his deposition, he claimed that he was forced to work evenings and sometimes weekends to “pick up the slack and do[ ] her job and mine at the same time.” He estimated that he spent 30% of his time doing Liu’s work. He stated that he was anxious to have her return.

In early September 1998, a few weeks before Liu was scheduled to return, Tran telephoned her to ask whether she would be returning to work on September 19th. According to Liu, Tran reminded her that he expected her to get back to work and that he had “been holding projects” for her. Liu responded that she had experienced fainting spells and fatigue and felt she needed more time to recover from childbirth. Tran allegedly replied “you can’t die yet '.... [w]e need you for the projects” and insisted she commit to a specific return date. She then requested an extension of her return date until December. Tran denied her request immediately. He stated again that she needed to return to work because he was holding projects for her.

About a week before her scheduled September return date, Liu and her husband visited her office to attend a birthday party for a co-worker and introduce their newborn baby to her fellow employees. During the birthday party, Tran asked her to meet him in his office where he demanded that she provide a firm return date. She again requested an extension of her leave until December to “recover from my pregnancy and bond with my baby.” He denied the request but ultimately agreed to a shorter extension to November 16, 1998. Personnel records indicate that after this meeting, Tran transferred Liu from pregnancy leave status to a personal leave of absence.

Around the beginning of October, Liu decided to travel to China to provide needed care for her terminally ill father and to continue caring for and bonding with her newborn. She telephoned Tran again to ask for an extension until December. He refused. She contacted him again several times, asking for shorter extensions.² He refused. Liu then contacted the Human Resources Department and explained her situation. She was told that a member of the department would speak to Tran. A few days later, Tran called Liu to give her a one-week extension until November 23, 1998.

Around the end of September or the beginning of October, Tran was informed that the company would be experiencing a reduction-in-force and that Liu’s department would be merging with another. He was told that at least one position in the department would be eliminated. Tran and two other employees were the central decision makers as to who would be eliminated.

In mid-October, shortly before Liu had planned to leave for China, Tran requested that she visit the company to review her annual performance evaluation. At the meeting, Tran informed Liu that he was reassigning her primary project to another employee. He further mentioned that the company was downsizing. He then gave Liu her performance evaluation. Her overall score was a 2.52, a 19% drop from the over-all score she had received six months earlier.

Liu’s score placed her at the bottom of her department. Tran gave her the lowest possible score, a “one,” in several categories including written communication, a category in which she had excelled in her previous evaluation. He also gave her a “one” in several “soft skills” such as “encourages self-development” and “holds people accountable for meeting goals.”³ During the entire year of 1998, Tran did not give a “one” to a single employee other than Liu.

Liu’s prior evaluation under her former supervisor, David Groh, was very positive. He gave her very high scores, a 3.1 overall, and remarked that she was an excellent scientist with very good written communication skills. Scores in her department ranged from 2.8 to 3.1, making Liu’s score one of the two highest in a department of four. Groh testified that he could not recall ever criticizing her work either to her directly or to any other supervisor.

Around the third week of October, a decision to terminate Liu was made. Robin Dykehouse had primary responsibility of deciding which employee would be terminated. In doing so, she relied on the overall score and verbal recommendations given by division supervisors. According to Dykehouse, Tran characterized Liu as the weakest in his group and recommended her for termination.

On October 17, 1998, Liu left for China. Upon her return on November 18, 1998, Tran told her she had been terminated. Liu was the only scientist involuntarily terminated from her division. The only other scientist whose position was eliminated in the downsizing was reassigned instead of eliminated.

Liu brought this action in the District Court for the Southern District of California in April 2000. The case was transferred to the Central District of California (Eastern Division) on Amway’s motion. Liu filed a Second Amended Complaint in September 2000. Amway moved for summary judgment on every cause of action. The court heard argument in September 2001. On October 1, 2001, the district court granted summary judgment in favor of Amway on all claims. Liu appeals.

II. DISCUSSION

We review a grant of summary judgment de novo. Weiner v. San Diego County, 210 F.3d 1025, 1028 (9th Cir.2000). We are governed by the same standard used by the trial court. Parker v. United States, 110 F.3d 678, 681 (9th Cir.1997). We must determine, viewing the evidence in the light most favorable to the nonmov-ing party, whether “there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law.” Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir.2000) (en banc).

A. FAMILY AND MEDICAL LEAVE ACT AND THE CALIFORNIA FAMILY RIGHTS ACT

The parties do not dispute that Liu was entitled to unpaid leave under the FMLA and its state counterpart, CFRA, after her pregnancy disability leave expired.⁴ Liu was entitled to a maximum of four months of pregnancy disability leave under FEHA. Cal. Gov’t Code § 12945. She was then entitled to an additional 12 weeks of leave to care for her baby or herself or a close relative with a serious illness under the FMLA, 29 U.S.C. § 2612(a), and CFRA, Cal. Gov’t Code § 12945.2(a). Pregnancy disability leave under FEHA is a distinct and additional entitlement to that granted by FMLA and CFRA. CahCode Regs. tit. 2, § 7297.6(a) (2003).

We must decide whether there is a triable issue of fact as to whether Liu’s protected rights to take FMLA leave were violated by Amway. We find that a triable issue of fact exists and reverse the district court’s grant of summary judgment on Liu’s FMLA/CFRA claims.

The FMLA provides job security and leave entitlements for employees who need to take absences from work for personal medical reasons, to care for their newborn babies, or to care for family members with serious illnesses. 29 U.S.C. § 2612. The FMLA entitles qualifying employees to take unpaid leave for up to 12 weeks each year provided they have worked for the covered employer for 12 months.⁵ 29 U.S.C. § 2612(a).

The FMLA creates two interrelated substantive rights for employees. Bachelder v. America West Airlines, Inc., 259 F.3d 1112, 1122 (9th Cir.2001). First, an employee has the right to take up to twelve weeks of leave for the reasons described above. 29 U.S.C. § 2612(a). Second, an employee who takes FMLA leave has the right to be restored to his or her original position or to a position equivalent in benefits, pay, and conditions of employment upon return from leave. 29 U.S.C. § 2614(a). The FMLA does not entitle the employee to any rights, benefits, or positions they would not have been entitled to had they not taken leave. 29 U.S.C. § 2614(a)(3)(B). It simply guarantees that an employee’s taking leave will not result in a loss of job security or in other adverse employment actions.

To protect the employee, FMLA prohibits interference with the exercise of the employee’s right to take leave. 29 U.S.C. § 2615(a). The relevant provision reads “[i]t shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this title [and sub-chapter].” 29 U.S.C. § 2615(a)(1).

Congress has authorized the Department of Labor (“DOL”) to issue implementing regulations for the FMLA. 29 U.S.C. § 2654. These regulations are entitled to deference under Chevron USA, Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843-44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Bachelder, 259 F.3d at 1123 n. 9. DOL regulations state that “[t]he FMLA prohibits interference with an employee’s rights under the law.” 29 C.F.R. § 825.220(a). Any violation of the FMLA itself or of the DOL regulations constitute interference with an employee’s rights under the FMLA. 29 C.F.R. § 825.220(b). The DOL interprets “interference” to include “not only refusing to authorize FMLA leave, but discouraging an employee from using such leave.” Id. The regulations specify one form of employer interference — i.e., “employers cannot use the taking of FMLA leave as a negative factor in employment actions.” 29 C.F.R. § 825.220(c).

Liu argues that Amway interfered with, discouraged and denied her FMLA rights, as prohibited by 29 U.S.C. § 2615(a)(1), by (1) denying and mischaracterizing her FMLA leave⁶ and (2) using her protected FMLA leave as a factor in its decision to terminate her.⁷

1. Denial and Discouragement of Leave

Liu argues that Amway denied her right to FMLA leave (a) by rejecting her requests for additional leave and by forcing her to take shorter extensions of additional leave and (b) by mischaracterizing her FMLA protected leave as personal leave.⁸

(a) Denial of Extensions

Liu claims that by repeatedly denying her requests for extensions and requiring her to reduce her leave time, Amway interfered with her rights under FMLA.

Amway argues that regardless of whether Tran actually granted her extensions, Liu in fact received the entire amount of leave she requested because she was still on leave when she was terminated. The district court found this argument persuasive and held that it was irrelevant that Tran denied Liu leave on several occasions.

As the Supreme Court recently recognized, the FMLA was enacted to respond to the “ ‘serious problem with the discretionary nature of family leave’ ” that occurs “when ‘the authority to grant leave and to arrange the length of that leave rests with individual supervisors.’ ” Nevada Dep’t of Human Resources v. Hibbs, 538 U.S. 721, -, 123 S.Ct. 1972, 1980, 155 L.Ed.2d 953 (2003) (quoting H.R.Rep. No. 103-8, pt. 2, pp. 10-11 (1993)).

DOL regulations clearly state that an employer interferes with an employee’s rights under FMLA by “refusing to authorize FMLA leave” and “discouraging an employee from using such leave.” 29 C.F.R. § 825.220. It follows that an employer has discouraged an employee from taking FMLA leave when his or her supervisor interferes with the length and dates of leave, including denying leave out right. See, e.g., Williams v. Shenango, Inc., 986 F.Supp. 309, 320-21 (W.D.Pa.1997) (holding that periodic denials of FMLA leave requests and limitations on which week the employee was allowed to take it presented a genuine issue of fact as to whether the employee’s rights under FMLA were denied). The statute and the accompanying regulations protect an employee from any employer actions that discourage or interfere with the right to take FMLA leave. 29 C.F.R. § 825.220(1).

The evidence before the court on summary judgment demonstrates clear interference with Liu’s rights to take FMLA leave. Tran admits that he believed that he had discretion on the matter and so refused to grant her extensions repeatedly — extensions she was entitled to under FMLA. Tran pressured Liu to reduce her leave time, thus discouraging her from using her FMLA leave.

We reverse the district court’s grant of summary judgment on this portion of Liu’s interference claim. There is a triable issue of material fact as to whether Amway interfered with Liu’s rights by denying and discouraging her use of FMLA leave.

(b) Mischaracterization of FMLA Leave

It is the employer’s responsibility to determine when FMLA leave is appropriate, to inquire as to specific facts to make that determination, and to inform the employee of his or her entitlements. Bailey v. Southwest Gas Co., 275 F.3d 1181, 1185 (9th Cir.2002). DOL regulations state that “[t]he employee need not expressly assert rights under the FMLA or even mention the FMLA, but may only state that leave is needed.” 29 C.F.R. § 825.302(c).

In the case at hand, Liu duly informed Tran of the reasons for her leave. It was his duty to initiate a procedure to determine whether she qualified for FMLA leave. Liu even contacted Amway’s Human Resources Department directly to explain her situation. The department took no action to determine whether Liu was entitled to FMLA leave.

An employer’s good faith or lack of knowledge that its conduct violates FMLA does not protect it from liability. Bachelder, 259 F.3d at 1130. Amway was responsible for properly identifying Liu’s FMLA leave. Both Tran and the Human Resources Department failed to fulfill their duties to Liu as required by the FMLA.

Although Amway concedes that Liu’s FMLA qualifying leave was misidentified as personal leave, it argues that Liu was not ultimately denied rights under FMLA because there was no practical distinction between the personal leave she was granted and the FMLA leave to which she was entitled. The district court agreed, holding that the classification of Liu’s leave was irrelevant.

The district court erred. Under DOL regulations, the mischaracterization of Liu’s FMLA leave as personal leave qualifies as “interference” with her leave. A violation of the FMLA simply requires that the employer deny the employee’s entitlement to FMLA leave. 29 C.F.R. § 825.220(a)(1) & (b).⁹ The employer here failed in its responsibility to assess Liu’s entitlement to FMLA leave and therefore denied her a substantive right under FMLA. Denial of Liu’s right to FMLA leave constitutes a violation of the FMLA.

Further, the designation of Liu’s leave as personal leave deprived her of rights under FMLA. By designating Liu’s leave as “personal,” she was subject to the control and discretion of her supervisor in taking leave she had a statutory right to take. Tran clearly believed that it was within his discretion to deny leave because the leave was “personal.” Had Liu’s leave been appropriately designated FMLA leave, Tran would not have had such discretion. See generally Hibbs, 538 U.S. at -, 123 S.Ct. at 1980 (discussing one of the aims of FMLA as eliminating the discretion individual supervisors had in granting family leave). FMLA leave for baby bonding time is not contingent upon an employer’s needs. E.g., Blohm v. Dillard’s Inc., 95 F.Supp.2d 473, 478-79 (E.D.N.C.2000) (rejecting an argument by employer that the employee should have scheduled their FMLA leave around the needs of the corporation).

We conclude that Liu presented a triable issue of fact as to whether her rights under FMLA were violated by the mis-identification of her FMLA leave as personal leave. FMLA enforcement mechanisms protect employees against having to plead and negotiate with their supervisors to be granted leave they are entitled to receive under both FMLA and CFRA. We reverse the district court on this issue.

2. Use of FMLA Leave as a Factor in Liu’s Termination

Liu also alleges that Amway impermissibly used her FMLA leave as a factor in the decision to terminate her. Where an employee alleges that his or her FMLA leave is impermissibly considered in the decision to terminate him or her, this Circuit applies the standard set forth by the DOL in 29 CFR § 825.220(c). Bachelder, 259 F.3d at 1124-25. Thus, at trial, an employee may prevail on a claim that an employer interfered with her rights by terminating her in violation of FMLA by showing,

by a preponderance of the evidence that her taking of FMLA-protected leave constituted a negative factor in the decision to terminate her. She can prove this claim, as one might any ordinary statutory claim, by using either direct or circumstantial evidence, or both.

Id. at 1125. Therefore, the question for us on appeal from the district court’s grant of summary judgment is whether there is a triable issue of material fact as to whether the FMLA leave taken by Liu was imper-missibly considered as a factor in her termination.

Here, the district court erred by applying the analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), to Liu’s claim that her FMLA qualified leave influenced the decision to terminate her. While other circuits have applied the McDonnell Douglas framework to FMLA termination cases, this Circuit, almost two months before the district court’s ruling in this case, explicitly declined to apply this framework. Bachelder, 259 F.3d at 1125. We held that the statutory and regulatory language of FMLA makes clear that where an employee is subjected to “negative consequences ... simply because he has used FMLA leave,” the employer has interfered with the employee’s FMLA rights under 29 C.F.R. § 825.220(a)(1). Bachelder, 259 F.3d at 1124:

In contrast, where an employee is punished for opposing unlawful practices by the employer, the issue then becomes one of discrimination and retaliation. Id.¹⁰ In a similar determination made by the Seventh Circuit in Diaz v. Fort Wayne Corp., 131 F.3d 711 (7th Cir.1997), the court explained that FMLA claims “do not depend on discrimination” since the issue is not that “the employer treated one employee worse than another” but that every employee has substantive rights under FMLA that the employer must respect. Id. at 712.

We apply the correct standard and find that Liu has presented evidence from which a jury could conclude that Tran took the fact that she took leave into account in giving her a low score on her evaluation and recommending her for termination.¹¹

Liu’s evidence that Tran’s subjective evaluation served as the central, if not sole, factor in her termination is significant.¹² Where termination decisions rely on subjective evaluations, careful analysis of possible impermissible motivations is warranted because such evaluations are particularly “susceptible of abuse and more likely to mask pretext.” Weldon v. Kraft, Inc., 896 F.2d 793, 798 (3d Cir.1990) (internal citation omitted); see also Lujan v. Walters, 813 F.2d 1051, 1057 (10th Cir.1987) (noting that “subjective criteria as ‘dedicated’ and ‘enthusiasm’ may offer a convenient pretext for giving force and effect to prejudice, and can create a strong inference of employment discrimination”). Here, Liu’s lowest scores were, as Tran explained, in “soft skills” that “cannot be taught,” such as “being upbeat.” A jury could find these categories vague enough to be suspect given the surrounding events.

The 19% drop in overall score from her former employee evaluation may also create an inference of impermissible motivation. See Winarto v. Toshiba Am. Elecs. Components, Inc., 274 F.3d 1276, 1286 (9th Cir.2001) (holding that “[a]n unwarranted reduction in performance review scores can constitute evidence of pretext in retaliation cases” under Title VII), cert. dismissed, 537 U.S. 1098, 123 S.Ct. 816, 154 L.Ed.2d 766 (2003); cf. Hodgens, 144 F.3d at 170-171 (holding that prior bad performance over two year span in evaluations weakened support for allegation that the employee’s termination was in violation of FMLA).

This evidence, combined with Tran’s behavior toward Liu regarding her leave suggests that the evaluation may have been tainted with his attitude towards her leave. His repeated denials of her leave and comments about his increased workload support this contention. Finally, the proximity in time between the leave and her termination also provides supporting evidence of a connection between the two events. Hodgens, 144 F.3d at 168 (holding that the “close temporal proximity between two events may give rise to an inference of causal connection.”).

We thus conclude there is a triable issue of material fact on whether Amway considered Liu’s FMLA qualified leave as a factor in her termination, thus causing interference with her rights under FMLA.

B. PUBLIC POLICY

Under California law, employment is at-will unless the parties contract otherwise. See Cal. Lab.Code § 2922. California courts, however, have carved out a specific exception to this general rule: an employer will be liable if it terminates an employee in violation of public policy. See Stevenson v. Superior Court, 16 Cal.4th 880, 66 Cal.Rptr.2d 888, 941 P.2d 1157 (1997).

Stevenson established a set of requirements that a policy must satisfy to support a tortious discharge claim.

First, the policy must be supported by either constitutional or statutory provisions. Second, the policy must be “public” in the sense that it “inures to the benefit of the public” rather than serving merely the interests of the individual. Third, the policy must have been articulated at the time of the discharge. Fourth, the policy must be “fundamental” and “substantial.”

Id. at 889-90, 66 Cal.Rptr.2d 888, 941 P.2d 1157; see also Gantt v. Sentry Insurance, 1 Cal.4th 1083, 1095, 4 Cal.Rptr.2d 874, 824 P.2d 680 (1992), overruled on other grounds by Green v. Ralee Eng’g Co., 19 Cal.4th 66, 90, 78 Cal.Rptr.2d 16, 960 P.2d 1046 (1998).¹³

Discharge in violation of the CFRA has been held, as a matter of law, to constitute wrongful discharge in violation of public policy. See Nelson v. United Technologies, 74 Cal.App.4th 597, 612, 88 Cal.Rptr.2d 239 (1999); see also Moreau, 2002 WL 500779, at *8. As its federal counterpart, violation of the FMLA also must constitute a violation of public policy.

Thus, because there is a triable issue of material fact as to whether Liu was terminated in violation of the FMLA and CFRA, summary judgment must also be denied on the question of whether her termination violated public policy.

C. BREACH OF IMPLIED-IN-FACT CONTRACT AND COVENANT OF GOOD FAITH AND FAIR DEALING

Liu argues that Amway breached an implied-in-fact contract that she would only be terminated for cause. She alleges Amway failed to follow its disciplinary and termination procedures as set forth in its employee handbook.

California law presumes at-will employment where contract terms do not specify otherwise. Guz v. Bechtel Nat’l, Inc., 24 Cal.4th 317, 335, 100 Cal.Rptr.2d 352, 8 P.3d 1089 (2000) (analyzing Cal.Lab.Code § 2922). While California courts will look to factors such as employer personnel policies, longevity of service, and assurances of continued employment in determining whether the employer’s conduct “gave rise to an implied-in-fact contract,” they have been careful not to interpret such factors too liberally. Id. at 337, 341-42, 100 Cal.Rptr.2d 352, 8 P.3d 1089. Further, explicit at-will contract language “must be taken into account, along with all other pertinent evidence, in ascertaining the terms on which a worker was employed.” Id. at 340, 100 Cal.Rptr.2d 352, 8 P.3d 1089.

Liu’s short term of employment with Amway and explicit at-will provisions contained in her employment letter and employee handbook suggest that no implied-in-fact contract was created that limited Amway’s ability to terminate employment at any time.

Further, even if Liu could demonstrate that Amway was required to terminate her for good cause, California courts have held that a valid reduction in force constitutes “good cause.” See, e.g., Clutterham v. Coachmen Indus., Inc., 169 Cal.App.3d 1223, 1226, 215 Cal.Rptr. 795 (1985). There is no evidence in the record to suggest that Amway’s reduction in force was invalid.

Finally, Liu’s covenant of good faith and fair dealing claim also fails, because there are no contract terms to support the covenant. See Foley v. Interactive Data Corp., 47 Cal.3d 654, 690, 254 Cal.Rptr. 211, 765 P.2d 373 (1988).

Consequently, we affirm the district court’s grant of summary judgment on Liu’s breach of implied in fact contract and covenant of good faith and fair dealing claims.

RYMER, Circuit Judge, with whom McKEOWN, Circuit Judge, joins.

D. TITLE VII AND FEHA RETALIATION AND DISCRIMINATION

Liu abandoned whatever claims she may have had under Title VII and FEHA by failing to raise them as issues or make any argument with respect to them in her opening brief. See Collins v. City of San Diego, 841 F.2d 337, 339 (9th Cir.1988). Accordingly, the district court’s judgment stands as to Liu’s Title VII and FEHA claims.

III. CONCLUSION

We REVERSE the district court’s grant of summary judgment on Liu’s FMLA, CFRA, and public policy claims and AFFIRM the district court’s decision as to Liu’s breach of contract and covenant of good faith and fair dealing claims, and Title VII and FEHA retaliation and discrimination claims.

AFFIRMED in part, REVERSED in part, and REMANDED.

1 . Defendant Amway is now named Alticor. We refer to the defendant as "Amway” throughout this opinion.

2 . Though Tran and Liu dispute the number of times he denied extensions, he admits he denied to extend her leave at least once.

3 . Tran explained in his deposition that "soft skills” are skills that "cannot be taught.” They apparently require just “being upbeat” and understanding "what motivates team members.” Because Liu's English skills were lacking and she was "a little shy,” she did not possess these skills according to Tran.

4 . Since CFRA adopts the language of the FMLA and California state courts have held that the same standards apply, we refer to FMLA leave only for the remainder of this opinion with the understanding that CFRA leave is also included. See Dudley v. Dep't of Transp., 90 Cal.App.4th 255, 261, 108 Cal.Rptr.2d 739 (2001); Pang v. Beverly Hospital, Inc., 79 Cal.App.4th 986, 993, 94 Cal.Rptr.2d 643 (2000); cf. Moreau v. Air France, 2002 WL 500779, *1 (N.D.Cal. Mar.25, 2002) (discussing only FMLA because CFRA and FMLA are "substantively identical”), aff'd, 343 F.3d 1179 (9th Cir.2003).

5 . The FMLA sets out certain requirements for the period an employee must have worked to qualify for leave. 29 U.S.C. § 2611. These requirements are not at issue here. The opposing parties both agree Liu was entitled to FMLA leave.

6 . The district court reasoned that this interference claim was irrelevant because there are no actual damages attached to it. The FMLA only provides for compensatory damages and not punitive damages. 29 U.S.C. § 2617(a). Thus, the district court concluded, because Liu was terminated prior to the expiration of her reduced amount of leave, she did not sustain any damages from being denied leave or having her leave mischarac-terized as personal leave.

Though we need not reach the question of damages at this stage, we note only that liability as to this portion of the claim may result in damages. The FMLA provides for damages equal to the amount of wages, salary and employment benefits. 29 U.S.C. § 2617(a)(1)(A). Depending on Amway’s policies, because Liu’s leave was characterized as personal leave, she may have lost employment benefits to which she was entitled. See generally Pallas v. Pacific Bell, 940 F.2d 1324, 1326-27 (9th Cir.1991) (finding that employer who credits temporary disability leave toward retirement benefits must also credit pregnancy related leave but need not credit personal leave), cert. denied, 502 U.S. 1050, 112 S.Ct. 916, 116 L.Ed.2d 815 (1992).

Further, the repeated interference with and mischaracterization of her FMLA leave will likely be relevant when determining liquidated damages should Liu prevail on her claim. See generally Bachelder, 259 F.3d at 1130 (explaining that an employer may be liable for liquidated damages, "unless it can prove that it undertook in good faith the conduct that violated the Act and that it had reasonable grounds for believing that [its action] was not a violation of the Act” (internal quotations omitted)). Liu's repeated leave requests and involvement of the Human Resources Department weigh against arguments of good faith by Amway.

7 . We note that some circuits have invoked § 2615(a)(2) in cases similar to Liu’s where the plaintiff was subjected to an adverse employment action for taking FMLA protected leave. In this circuit, however, we have clearly determined that § 2615(a)(2) applies only to employees who oppose employer practices made unlawful by FMLA, whereas, § 2615(a)(1) applies to employees who simply take FMLA leave and as a consequence are subjected to unlawful actions by the employer. Bachelder, 259 F.3d at 1124. For examples of the application of § 2615(a)(2) to this type of claim, see O'Connor v. PCA Family Health Plan, Inc., 200 F.3d 1349, 1352 (11th Cir.2000), and Hodgens v. General Dynamics Corp., 144 F.3d 151, 159-60 (1st Cir.1998).

8 . Amway mistakenly claims that Liu failed to raise an "interference” claim under FMLA in her Second Amended Complaint. Liu simply misidentifies her interference claim as "retaliation” and "discrimination” claim under the FMLA.

9 . Section 825.220(a)(1) reads "[a]n employer is prohibited from interfering with, restraining, or denying the exercise of (or attempts to exercise) any rights provided by the Act.” 29 C.F.R. § 825.220(a)(1). Section 825.220(b) reads "[a]ny violations of the Act or of these regulations constitute interfering with, restraining, or denying the exercise of rights provided by the Act.” 29 C.F.R. § 825.220(b).

10 . This court has reserved judgment on whether the McDonnell Douglas analysis would be applicable in an anti-retaliation action under § 2615(a)(2). Bachelder, 259 F.3d at 1125.

11 . Amway argues that because Liu was terminated in the context of a legitimate reduction in force, there can be no liability under FMLA. This is incorrect. Termination within the context of a reduction in force does not insulate the defendant from liability for violating FMLA. Where a plaintiff alleges that she was terminated for unlawful reasons, courts will not accept a reduction in force as the conclusory explanation for the employee’s termination. See Hodgens, 144 F.3d at 167-68 (holding that where an employee takes FMLA leave and is terminated in a reduction in force, legitimate selection criteria presented by the employer will not insulate it from liability).

12 . Depositions of the other two employees on the termination task force reveal that the central determinant as to which employees would be eliminated from each division was the current evaluation performed by their supervisor.

13 . Green expanded the first Stevenson requirement — that the policy be supported by either constitutional or statutory provisions — -to in-elude statutorily authorized administrative regulations. 19 Cal.4th at 80 n. 6, 78 Cal.Rptr.2d 16, 960 P.2d 1046.