Maria Escriba v. Foster Poultry Farms, Inc.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARIA ESCRIBA, Nos. 11-17608

Plaintiff-Appellant- 12-15320

Cross-Appellee,

D. C. No.

v. 1:09-cv-01878-

LJO- MJS

FOSTER POULTRY FARMS, INC.,

Defendant-Appellee- OPINION

Cross-Appellant.

Appeal from the United States District Court

for the Eastern District of California

Lawrence J. O’Neill, District Judge, Presiding

Argued and Submitted

November 7, 2013—San Francisco, California

Filed February 25, 2014

Before: Sidney R. Thomas, Ronald Lee Gilman,* and

Johnnie B. Rawlinson, Circuit Judges.

Opinion by Judge Gilman

*

The Honorable Ronald Lee Gilman, Senior Circuit Judge for the U.S.

Court of Appeals for the Sixth Circuit, sitting by designation.

2 ESCRIBA V. FOSTER POULTRY FARMS

SUMMARY**

Labor Law

The panel affirmed the district court’s judgment, after a

jury trial, in favor of the defendant in an action under the

Family and Medical Leave Act and its California equivalent.

The panel held that the district court did not err in

denying the plaintiff’s motion for summary judgment because

an employee can affirmatively decline to use FMLA leave,

even if the underlying reason for seeking leave would have

invoked FMLA protection. The panel held that the district

court did not err in denying the plaintiff’s motion for

judgment as a matter of law because, viewing the evidence in

the light most favorable to the jury’s verdict, there was

substantial evidence that the plaintiff elected not to take

FMLA leave. In addition, the district court did not err in

admitting evidence about the plaintiff’s prior FMLA leave.

On the defendant’s cross-appeal, the panel held that the

district court did not abuse its discretion in declining to tax

costs.

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

ESCRIBA V. FOSTER POULTRY FARMS 3

COUNSEL

Robert Borton, Elizabeth Kristen (argued), Sharon Terman

(argued), The Legal Aid Society-Employment Law Center,

San Francisco, California, for Plaintiff-Appellant/Cross-

Appellee.

Julia A. Follansbee, Follansbee & Associates, Bend, Oregon;

Carmine R. Zarlenga (argued), Michael B. Kimberly, Mayer

Brown LLP, Washington, D.C., for Defendant-

Appellee/Cross-Appellant.

Jonathan J. Frankel, Steese, Evans & Frankel, P.C.; Sarah

Crawford, Abigail Cook-Mack, National Partnership for

Women & Families, Washington, D.C., for Amicus Curiae

National Partnership for Women & Families, A Better

Balance, California Women’s Law Center, Equal Rights

Advocates, National Employment Lawyers Association,

National Women’s Law Center, and 9to5, National

Association of Working Women.

OPINION

GILMAN, Senior Circuit Judge:

Maria Escriba worked in a Foster Poultry Farms, Inc.

(Foster Farms) processing plant in Turlock, California for 18

years. She was terminated in 2007 for failing to comply with

the company’s “three day no-show, no-call rule” after the end

of a previously approved period of leave, which she took to

care for her ailing father in Guatemala. Escriba subsequently

filed suit under the Family and Medical Leave Act (FMLA)

and its California equivalent.

4 ESCRIBA V. FOSTER POULTRY FARMS

The parties dispute the characterization of Escriba’s

request for a two-week period of leave. Escriba claims that

her termination is an unlawful interference with her rights

under the FMLA. Foster Farms responds that, although

Escriba provided an FMLA-qualifying reason for taking

leave, she explicitly declined to have her time off count as

FMLA leave. The district court characterized the case as a

classic “he said, she said” matter focused on what Escriba

told her supervisors. Escriba’s claims therefore proceeded to

a jury trial in 2011.

Before Escriba’s claims were submitted to the jury, both

parties moved for judgment as a matter of law (JMOL). The

district court denied Foster Farm’s motion and took Escriba’s

under advisement, pending the jury’s determination. After

the jury returned a verdict in favor of Foster Farms, Escriba

renewed her motion for JMOL and requested a new trial. The

district court denied both motions.

Foster Farms, as the prevailing party, then moved to tax

costs against Escriba. The district court declined to do so.

Both parties have timely appealed the respective adverse

rulings against each of them. For the reasons set forth below,

we AFFIRM the judgment of the district court on all issues.

I. BACKGROUND

A. Factual background

On November 19, 2007, Escriba met with her immediate

supervisor, Linda Mendoza, to request time off to care for her

ailing father in Guatemala. This meeting occurred four days

before Escriba left for Guatemala on November 23 and

ESCRIBA V. FOSTER POULTRY FARMS 5

approximately three weeks after she learned of her father’s

illness. Before Escriba’s meeting with Mendoza, Escriba’s

daughter had purchased round-trip airfare for Escriba with a

return date of December 27, 2007. This month-plus gap

between November 23 and December 27 obviously conflicts

with Escriba’s request for a two-week vacation. At trial,

Escriba explained that the discrepancy was simply the result

of her daughter “pa[ying] for my ticket for that time. If

[Foster Farms] did not give me more time [off], I would call

the airlines so that I could come back sooner.”

Escriba maintains that, on November 19, she asked

Mendoza for time off, requesting “Linda, please for me,

Linda, for me, vacation.” She also claims that she told

Mendoza that her “father is no good. . . . [and] is in [a]

hospital in Guatemala.” After hearing this, Mendoza

apparently responded: “Okay, Maria, you vacation,” after

which Escriba “left it at that and [] went to work.”

A short time later, Mendoza gave Escriba a piece of paper

detailing the leave request and said: “Maria, two week[s] of

vacation for you.” Escriba maintains that she responded:

“Please one week or two week free for me,” to which

Mendoza replied: “No, Maria.” According to Escriba, the

phrase “one week or two week free for me” meant that she

sought unpaid leave in addition to the two-week paid

vacation. This conversation between Escriba and Mendoza

occurred in English because Mendoza does not speak

Spanish.

Mendoza testified that she followed up her conversation

with Escriba two days later, on November 21. This time

Mendoza included Alfonso Flores, another Foster Farms

supervisor, who acted as an interpreter. Mendoza testified

6 ESCRIBA V. FOSTER POULTRY FARMS

that she asked Flores to act as an interpreter “to make sure

[Escriba] could understand what I was asking.” Flores then

asked Escriba if “she need[ed] more time” in Guatemala to

care for her father, to which Escriba responded “no.” After

hearing that Escriba was not requesting additional time in

Guatemala, Mendoza asked Flores to repeat the question.

Escriba again answered “no.” Flores corroborates Mendoza’s

testimony, confirming that Escriba twice stated that she did

not need or want more than two weeks of leave. Escriba

herself admitted during cross-examination that she requested

the leave from Mendoza (and not from Foster Farms’s

Human Resources Department) because she intended to

request vacation time, not “family leave to go to Guatemala.”

After hearing Escriba refuse additional leave, Mendoza

filled out Escriba’s vacation paperwork. Mendoza then told

Escriba, in English, that Escriba would need to visit the

Human Resources Department if she later decided to request

more than two weeks of leave. By directing Escriba to

Human Resources, Mendoza believed that she “was telling

[Escriba] if the vacation that [Mendoza was] granting [was]

not sufficient, then [Escriba had to] go to HR and discuss it

with them further.”

Escriba testified that she then visited Ed Mendoza, the

Foster Farms facility superintendent (who is not related to

Linda Mendoza) because he spoke Spanish. She handed over

her vacation slip and explained: “I’m on my way to

Guatemala . . . [b]ecause my dad is very ill.” Escriba

allegedly revealed that “I only am going with two weeks

vacation” before adding that “I wanted to know if [you] could

do me a favor and give me one or two weeks more leave.”

According to Escriba, Ed Mendoza said that he could not

ESCRIBA V. FOSTER POULTRY FARMS 7

provide additional leave, but told her to bring a doctor’s note

when she returned to work.

Ed Mendoza’s account of his conversation with Escriba

differs in several material respects. He testified that Escriba

asked “strictly” for “vacation time” and not “family leave.”

When Escriba asked Ed Mendoza what she needed to do if

she was unable to return by December 10, 2011, Ed Mendoza

testified that he told her “to fax or send a note or some

documentation to the human resources office.” He did not

instruct Escriba regarding her rights and obligations under the

FLMA or take any steps to designate her time off as FMLA

leave.

After securing two weeks of leave, Escriba traveled to

Guatemala to care for her father. She testified that, shortly

after arriving, she decided that returning to work on

December 10, 2007 would be impractical. Escriba said on

direct examination that she attempted to contact her

supervisors at Foster Farms to extend her leave, but on cross-

examination contradicted herself:

Question: Why didn’t you call your employer

to let them know that you would not be

coming back by the 10th?

Answer: I just couldn’t think about it. I

didn’t remember.

Escriba v. Foster Poultry Farms, Inc., No. 1:09-CV-1878,

2011 WL 4565857, at *8 (E.D. Cal. Sept. 29, 2011). Escriba

also conceded on cross-examination that she had periodic

contact during this time frame with her husband, who also

8 ESCRIBA V. FOSTER POULTRY FARMS

worked at Foster Farms, yet she never asked him to contact

the company’s Human Resources Department on her behalf:

Question: While you were at Guatemala in

November and December of 2007, you talked

to your husband on the telephone; isn’t that

correct?

Answer: Yes.

Question: And your husband was working at

Foster Farms at that time; is that right?

Answer: Yes.

...

Question: Does he use the same office of

personnel that you use?

Answer: Yes.

Question: So while you were in

Guatemala and talking to your

husband from time to time, did you

ask him to go to the department of

personnel at Foster Farms and tell

them on your behalf that you would

not be coming back?

Answer: No.

Id.

ESCRIBA V. FOSTER POULTRY FARMS 9

After failing to make contact, Escriba did not speak to

anyone affiliated with Foster Farms about extending her leave

until she spoke to her union representative on December 21,

2007. This conversation occurred 16 days after she was

scheduled to return to work. The union representative

informed Escriba that she would likely be terminated under

Foster Farms’s “three day no-show, no-call rule.” Under this

policy, an employee is automatically terminated if he or she

is absent for a period of three work days without notifying the

company or without seeking a leave of absence.

The “three day no-show, no-call rule” was not the only

Foster Farms policy discussed at trial. Foster Farms also

introduced its employee-leave policy that requires an

employee who requests FMLA-protected leave to first

exhaust paid vacation time. The initial paid leave runs

concurrently, counting against both an employee’s balance of

vacation time and his or her FMLA-protected leave. John

Dias, a labor relations manager with Foster Farms, testified

that if an employee elects to take vacation time and expressly

declines FLMA-protected leave, the company “can’t force

[the employee] to take a leave if they’re requesting to take the

availability of their vacation because that would be reducing

a benefit that [the employee] would have.” By first

exhausting paid vacation time, an employee thus preserves

the balance of any and all available FMLA time.

B. Procedural background

Escriba filed suit on October 26, 2009, alleging violations

of the FMLA, 29 U.S.C. § 2601 et seq., the California Family

Rights Act (CFRA), Cal. Gov’t Code § 12945.2 et seq., and

California public policy. This court has previously concluded

that identical standards apply to the FMLA and to the CFRA,

10 ESCRIBA V. FOSTER POULTRY FARMS

which means that violations of either statute “constitute a

violation of [California] public policy.” Xin Liu v. Amway

Corp., 347 F.3d 1125, 1138 (9th Cir. 2003); see also id. at

1132 n.4. We will therefore refer to all three causes of action

as arising under the FMLA.

The case proceeded through discovery, after which both

parties filed motions for summary judgment. Summary

judgment was denied because the district court determined

that there were genuine issues of material fact about whether

Escriba invoked or declined FMLA protections when she

spoke to Linda Mendoza and later to Ed Mendoza about

leaving for Guatemala, and about whether Escriba’s notice

was sufficient to trigger the FMLA’s protective provisions.

A six-day trial occurred in July 2011. At the close of all

the evidence, both parties moved for JMOL. The district

court denied Foster Farms’s motion and reserved judgment on

Escriba’s motion pending the jury’s verdict. After a short

deliberation, the jury returned a verdict in favor of Foster

Farms.

The district court denied Escriba’s renewed motion for

JMOL, concluding that substantial evidence supported the

jury’s finding that Escriba had “knowledge of FMLA leave

and how to invoke it,” yet unequivocally declined to take

more time or to request FMLA leave. Escriba, 2011 WL

4565857, at *4, *6. Escriba, in other words, “was given the

option and prompted to exercise her right to take FMLA-

leave, but . . . unequivocally refused to exercise that right.”

Id. at *7.

After the denial of Escriba’s post-trial motions, Foster

Farms sought to recover $21,703 for the costs of litigating the

ESCRIBA V. FOSTER POULTRY FARMS 11

five-day trial. Although the clerk of court lowered the costs

to $13,958, the district court rejected even this reduced total

and declined to tax costs in any amount. Both parties have

timely appealed.

II. ANALYSIS

A. Escriba’s motion for JMOL

1. Standard of review

We review de novo a district court’s denial of a renewed

motion for JMOL. Harper v. City of Los Angeles, 533 F.3d

1010, 1021 (9th Cir. 2008). A renewed motion for JMOL is

properly granted “if the evidence, construed in the light most

favorable to the nonmoving party, permits only one

reasonable conclusion, and that conclusion is contrary to the

jury’s verdict.” Pavoa v. Pagay, 307 F.3d 915, 918 (9th Cir.

2002). A jury’s verdict must be upheld if it is supported by

substantial evidence that is adequate to support the jury’s

findings, even if contrary findings are also possible. Harper,

533 F.3d at 1021.

Reviewing a renewed motion for JMOL requires scrutiny

of the entire evidentiary record, but the court “must not weigh

the evidence, [and instead] should simply ask whether the

[nonmoving party] has presented sufficient evidence to

support the jury’s conclusion.” Id. In so doing, the court

must draw all reasonable inferences in favor of the

nonmoving party and “disregard all evidence favorable to the

moving party that the jury is not required to believe.” Id.

12 ESCRIBA V. FOSTER POULTRY FARMS

2. The denial of Escriba’s motion for summary

judgment

Escriba argues that the district court erred by not granting

her motion for summary judgment on her FMLA-interference

claim. According to Escriba, there is no dispute that she told

both Linda Mendoza and Ed Mendoza that she needed time

off to care for her ailing father, which Escriba contends

automatically entitled her to FMLA protections. She also

argues that the jury’s verdict is contrary to the evidence

offered at trial, evidence that she claims clearly established

Foster Farms’s interference with her rights under the FMLA.

As a threshold matter, we generally do “not review a

denial of a summary judgment motion after a full trial on the

merits.” Banuelos v. Constr. Laborers’ Trust Funds for S.

Cal., 382 F.3d 897, 902 (9th Cir. 2004). “This general rule,

however, does not apply to those denials of summary

judgment motions where the district court made an error of

law that, if not made, would have required the district court

to grant the motion.” Id. (internal citation omitted). Here,

Escriba argues that the district court erred as a matter of law

by entertaining Foster Farms’s “legally impossible” theory of

the case that she affirmatively declined to take FMLA leave.

She claims that, absent this theory, she would have been

entitled to summary judgment on her FMLA-interference

claim.

3. There was no error of law

To make out a prima facie case of FMLA interference, an

employee must establish that “he was eligible for the

FMLA’s protections, (2) his employer was covered by the

FMLA, (3) he was entitled to leave under the FMLA, (4) he

ESCRIBA V. FOSTER POULTRY FARMS 13

provided sufficient notice of his intent to take leave, and

(5) his employer denied him FMLA benefits to which he was

entitled.” Sanders v. City of Newport, 657 F.3d 772, 778 (9th

Cir. 2011) (internal quotation marks omitted). Whether the

district court erred in entertaining Foster Farms’s contention

that Escriba did not intend to take FMLA leave (factor 4) is

the dispositive issue in this case.

Turning to that issue, Escriba argues that Foster Farms

was required to designate her leave as FMLA-protected and

to provide her with a notice of her rights under the FMLA

regardless of whether she expressly declined such a

designation. Escriba maintains, in other words, that refusing

to exercise FMLA rights as soon as they are available is

“legally impossible.” Escriba raised similar arguments in

both her pretrial motion for summary judgment and in her

preverdict motion for JMOL, so this issue is properly before

us despite Foster Farms’s contention to the contrary. See

United States v. Pallares-Galan, 359 F.3d 1088, 1095 (9th

Cir. 2004) (“[T]he Supreme Court has made clear [that] it is

claims that are deemed waived or forfeited, not arguments.”).

Turning now to the merits of this issue, the FMLA does

not expressly state whether an employee may defer the

exercise of FMLA rights under the statute. The pertinent

FMLA regulations promulgated by the Department of Labor

in 1995, however, provide some guidance. After an

employee alerts the employer of desiring to take leave for a

reason that would qualify under the FMLA, the “employer

will be expected to obtain any additional required information

through informal means.” 29 C.F.R. § 825.303(b). During

this “informal” process, the employee will be expected to

“provide more information.” Id.

14 ESCRIBA V. FOSTER POULTRY FARMS

The “employee need not expressly assert rights under the

FMLA or even mention the FMLA,” 29 C.F.R. § 825.302(c),

but the employer “should inquire further of the employee if

it is necessary to have more information about whether FMLA

leave is being sought by the employee, and to obtain the

necessary details of the leave to be taken,” id. (emphasis

added). Cf. Bachelder v. Am. W. Airlines, Inc., 259 F.3d

1112, 1130–31 (9th Cir. 2001) (holding that a company

whose employee provided two doctor’s notes regarding her

absences “was therefore placed on notice that the leave might

be covered by the FMLA, and could have inquired further to

determine whether the absences were likely to qualify for

FMLA protection”).

An employer’s obligation to ascertain “whether FMLA

leave is being sought” strongly suggests that there are

circumstances in which an employee might seek time off but

intend not to exercise his or her rights under the FMLA. And

a compelling practical reason supports this conclusion.

Holding that simply referencing an FMLA-qualifying reason

triggers FMLA protections would place employers like Foster

Farms in an untenable situation if the employee’s stated

desire is not to take FMLA leave. The employer could find

itself open to liability for forcing FMLA leave on the

unwilling employee. See, e.g., Wysong v. Dow Chem. Co.,

503 F.3d 441, 449 (6th Cir. 2007) (noting that “[a]n

involuntary-leave claim,” alleging that an “employer forces

an employee to take FMLA leave,” is “really a type of

interference claim”). We thus conclude that an employee can

affirmatively decline to use FMLA leave, even if the

underlying reason for seeking the leave would have invoked

FMLA protection. See, e.g., Ridings v. Riverside Med. Ctr.,

537 F.3d 755, 769 n.3 (7th Cir. 2008) (“If an employee does

not wish to take FMLA leave but continues to be absent from

ESCRIBA V. FOSTER POULTRY FARMS 15

work, then the employee must have a reason for the absence

that is acceptable under the employer’s policies, otherwise

termination is justified.” (emphasis added)).

Escriba essentially argues that affirmatively declining

FMLA leave is tantamount to waiving it, and she points to a

regulation providing that “[e]mployees cannot waive, nor

may employers induce employees to waive, their rights under

FMLA.” 29 C.F.R. § 825.220(d). But whatever support this

regulation provides to Escriba is eroded by another provision,

which explains that “waiver” in the context of the FMLA

means that an employee “cannot ‘trade off’ the right to take

FMLA leave against some other benefit offered by the

employer” as part of a collective bargaining agreement or

some other form of negotiation. Id. Foster Farms’s

contention, however, has never been that Escriba “trade[d]

off” her FMLA rights; rather, the company argued to the jury

that Escriba affirmatively declined to exercise her FMLA

rights in order to preserve her leave for future use.

As this court recognized in a case involving credit card

transactions, “[w]aiver is the voluntary relinquishment of a

known right.” Hauk v. J.P. Morgan Chase Bank USA,

552 F.3d 1114, 1119 (9th Cir. 2009) (internal quotation marks

omitted); see also Black’s Law Dictionary 1574 (7th ed.

1999) (defining waiver as “[t]he voluntary relinquishment or

abandonment . . . of a legal right or advantage”). But

affirmatively declining the present exercise of a right in order

to preserve it for the future is fundamentally different from

permanently relinquishing that right. Foster Farms’s theory

of the case is thus not “legally impossible.” The district court

therefore did not err in denying Escriba’s motion for

summary judgment on the basis that Foster Farms’s “cited

evidence demonstrates that [Escriba] was given the option

16 ESCRIBA V. FOSTER POULTRY FARMS

and prompted to exercise her right to take FMLA[]leave, but

that she unequivocally refused to exercise that right.”

Escriba, 2011 WL 4565857, at *7.

4. Substantial evidence supports the jury’s verdict

As to whether substantial evidence supported the jury’s

verdict, we note that Escriba did not object at trial to—nor

does she challenge on appeal—the verdict form or the jury

instruction that specifically referred to Escriba’s intent. The

verdict form directed the jury to decide whether Escriba

“provided sufficient notice of her intent to take [FMLA]

leave.” Moreover, the district court used the identical

language in its oral instructions to the jury. The inclusion of

“intent” is consistent with the boilerplate standard for FMLA-

interference claims in this circuit. See Sanders v. City of

Newport, 657 F.3d 772, 778 (9th Cir. 2011) (stating that an

employee must establish that “he provided sufficient notice

of his intent to take leave”).

Viewing the evidence in the light most favorable to the

jury’s verdict, as we must do in reviewing a motion for

JMOL, there is substantial evidence that Escriba elected not

to take FMLA leave. After Linda Mendoza’s initial meeting

with Escriba on November 19, 2007, Mendoza met with

Escriba and an interpreter, twice asking if Escriba needed

more time in Guatemala. Escriba twice answered “no.”

Mendoza testified that she then told Escriba to visit the

Human Resources Department if she later decided to request

more than two weeks of leave.

A jury hearing this evidence could conclude that Linda

Mendoza had “inquire[d] further of the employee . . . about

whether FMLA leave [was] being sought,” 29 C.F.R.

ESCRIBA V. FOSTER POULTRY FARMS 17

§ 825.302(c), and that Escriba’s two “no” responses clearly

indicated that she did not intend to take FMLA leave. Indeed,

the fact that Escriba approached Mendoza in the first place

rather than going directly to the Human Resources

Department is in itself telling because, as Escriba conceded,

Mendoza had approved all of Escriba’s vacation requests in

the past, whereas Human Resources had handled all of her

requests for FMLA leave.

In addition, other witnesses corroborated Linda

Mendoza’s testimony that Escriba did not intend to take

FMLA leave. Ed Mendoza, for example, testified that

Escriba asked only for “vacation time” and not for “family

leave.” Still another witness, Foster Farms’s labor-relations

manager John Dias, stated that his internal investigation into

Escriba’s termination confirmed that Escriba knew “she was

on vacation and she knew [it] was scheduled vacation.”

Circumstantial evidence also suggests that Escriba knew

that the Human Resources Department, not her supervisors,

approved FMLA leave because Escriba had successfully

requested FMLA leave on fifteen prior occasions. A

reasonable inference from this evidence is that, if Escriba had

desired to take FMLA leave, she would have arranged for

such leave with Human Resources. Considering all the

evidence, the jury reasonably found that Escriba expressed a

desire not to take FMLA leave.

Foster Farms also introduced evidence explaining why

Escriba might have declined to take FMLA leave at the time.

Under Foster Farms’s policies, FMLA leave runs

concurrently against the balance of both an employee’s

accrued vacation time and the employee’s FMLA-protected

leave until the paid vacation time is exhausted. When an

18 ESCRIBA V. FOSTER POULTRY FARMS

employee’s paid vacation time expires, that employee may

remain on unpaid leave until a total of 12 weeks elapses. See

29 U.S.C. § 2612(a)(1) (limiting FMLA leave to 12 weeks

per year). A different result occurs if an employee initially

declines FMLA leave. By declining to take FMLA leave and

subsequently requesting it at a later date, an employee can

first take paid vacation, after which that employee would still

have the full 12 weeks of FMLA leave remaining.

Under the facts of this case, if Escriba purposefully

deferred asking for FMLA leave until after the expiration of

her paid leave, she would have had two more weeks of

protected leave than if she had initially requested family

leave. A jury, hearing about Foster Farms’s policies, could

have easily concluded that Escriba sought to preserve future

FMLA time. For the foregoing reasons, substantial evidence

supports the jury’s verdict that Escriba did not intend to take

FMLA leave.

B. Evidence of prior FMLA usage

Escriba also argues that the district court erred in

admitting irrelevant and highly prejudicial evidence about her

prior FMLA leave, evidence that she argues had “no bearing

on whether she gave statutory notice, and which more likely

than not tainted the verdict.” According to Escriba, “[a]n

employee need not understand (or follow) her employer’s

policies for requesting FMLA leave in order to provide

adequate notice under the Act,” and therefore she “was not

required to contact Human Resources to give statutory

notice.” Foster Farms counters that Escriba’s argument “once

again obfuscat[es] the issue” because evidence of her prior

FMLA leaves was not offered to show that Escriba’s notice

was inadequate; rather, her decision not to visit Human

ESCRIBA V. FOSTER POULTRY FARMS 19

Resources on the occasion in question “suggested that she did

not want FMLA leave at all.”

Evidence is relevant and therefore admissible when it

tends to prove or disprove a fact “of consequence in

determining the action.” Fed. R. Evid. 401(b). But relevancy

is not the only prerequisite for admissibility. Relevant

evidence may be excluded “if its probative value is

substantially outweighed by a danger of . . . unfair prejudice,

confusing the issues, misleading the jury, undue delay,

wasting time, or needlessly presenting cumulative evidence.”

Fed. R. Evid. 403. “We review a district court’s admission of

evidence for abuse of discretion.” United States v. Dorsey,

677 F.3d 944, 951 (9th Cir. 2012).

In its July 13, 2011 order on Escriba’s motion in limine,

the district court permitted Foster Farms to introduce

evidence regarding Escriba’s prior FMLA leave for the

following limited purposes:

(1) Whether there was a policy and procedure

in place at Foster Farms regarding family

medical leaves of absence and related

paperwork;

(2) If there was a policy and procedure in

place at Foster Farms, whether such policy

and procedure was consistently applied in the

same manner in each instance of leave; and

(3) If there was a policy and procedure and

that policy and procedure was consistently

applied to Ms. Escriba and others, whether

Ms. Escriba knew of the policy and

20 ESCRIBA V. FOSTER POULTRY FARMS

procedure, whether [Ms. Escriba] followed

that policy on prior leaves, and whether she

knew the policy and procedure applied to the

circumstances present in this case.

Escriba v. Foster Poultry Farms, Inc., No. 1:09-CV-1878,

2011 WL 2746272, at *2 (E.D. Cal. July 13, 2011).

The district court agreed to “instruct the jury that Ms.

Escriba, like any eligible employee, has a lawful right to take

leaves under the [FMLA] for her own serious health

conditions and to care for family members with serious health

conditions.” Id. Morever, the district court agreed to instruct

the jury “that these prior leaves are not and may not be

presented to suggest that Ms. Escriba took too many leaves or

for any other negative conclusion about Ms. Escriba’s leave

history.” Id.

Escriba’s argument rests on the erroneous assertion that

simply mentioning an FMLA-qualifying reason for an

absence triggers the Act’s protections. This in turn rests on

Escriba’s erroneous contention, which is addressed in Part

II.A.3. above, that refusing to immediately exercise one’s

FMLA rights is “legally impossible.” But nothing in the

FMLA precludes an employee from deferring the exercise of

his or her FMLA rights and, as explained above, the

preservation of future FMLA leave is a compelling practical

reason why an employee might wish to do so. Because the

premise of Escriba’s argument against admissibility is

unfounded, her entire argument fails. Foster Farms’s theory

of the case was not, as Escriba maintains, “legally

impossible,” and the district court properly admitted (and

limited the use of) evidence of her prior FMLA usage.

ESCRIBA V. FOSTER POULTRY FARMS 21

Moreover, even if we were to conclude that the district

court erred in admitting evidence of Escriba’s prior FMLA

leave, the error was harmless. A jury “is presumed to follow

the instructions given to it,” United States v. Heredia,

483 F.3d 913, 923 (9th Cir. 2007) (en banc), and the

presumption is a “strong” one. Dorsey, 677 F.3d at 955.

The district court explicitly instructed the jury that “failure to

follow . . . internal employer procedures will not permit an

employer to disallow or delay an employee’s taking FMLA

leave if the employee gives timely verbal or other notice.”

Given this instruction, Escriba’s argument that evidence of

her prior FMLA leave improperly influenced the jury’s

decision is without merit. Escriba offers no tenable reason

why the strong presumption that juries follow the court’s

instructions should not apply in the present case. Because the

district court issued a limiting instruction, which the jury is

presumed to have followed, any error in admitting the

evidence was harmless.

In sum, the jury had ample evidence to render a verdict

against Escriba due to her noncompliance with Foster

Farms’s “three day no-show, no-call rule.” Escriba was

obligated to comply with this nondiscriminatory company

policy regardless of her reason for taking leave. We therefore

find no error in the ultimate judgment for Foster Farms.

C. Order denying costs

Turning now to the cross-appeal, Foster Farms contends

that the district court erred in denying the company’s cost bill

in the amount of $13,958.16, an amount that the court clerk

had reduced from the initial request for $21,703.31. The

district court declined to tax costs because Escriba has limited

financial resources, there is a significant financial disparity

22 ESCRIBA V. FOSTER POULTRY FARMS

between the parties, this case involves close issues of

substantial public importance, and because taxing costs would

have a chilling effect on future FMLA cases. Foster Farms

contends that the district court abused its discretion in

denying the claim for costs.

Rule 54(d)(1) of the Federal Rule of Civil Procedure

provides that “costs—other than attorney[] fees—shall be

allowed to the prevailing party.” On its face, “the rule creates

a presumption in favor of awarding costs to a prevailing

party, but vests in the district court discretion to refuse to

award costs.” Ass’n of Mexican-American Educ. v. State of

Cal., 231 F.3d 572, 591 (9th Cir. 2000) (en banc). This

discretion, however, is not without limits. Id. “A district

court must ‘specify reasons’ for its refusal to award costs.”

Id. We thus must determine whether the district court’s

reasons for denying costs “are appropriate and whether,

considering those reasons, the court abused its discretion in

denying costs.” Id. at 592.

Appropriate reasons for denying costs include: (1) the

substantial public importance of the case, (2) the closeness

and difficulty of the issues in the case, (3) the chilling effect

on future similar actions, (4) the plaintiff’s limited financial

resources, and (5) the economic disparity between the parties.

Id. at 592–93. This is not “an exhaustive list of ‘good

reasons’ for declining to award costs,” but rather a starting

point for analysis Id. at 593.

In concluding that the case presented issues of substantial

public importance, the district court relied on a letter from the

Fair Labor Standards Division of the United States

Department of Labor, the agency that is responsible for

administering and enforcing the FMLA. An Associate

ESCRIBA V. FOSTER POULTRY FARMS 23

Solicitor for the Department of Labor explained that cases

like Escriba’s “establish the parameters of what constitutes

sufficient employee notice,” which is “particularly important

to the public interest.” The district court also relied on a

California public official’s statement that a case brought on

behalf of a single plaintiff as opposed to a class can still be

important because these issues “protect[] vital civil rights for

women in the work place.” These statements directly

contradict Foster Farms’s contention that the case is mundane

because it includes only a single plaintiff. Indeed, the record

includes statements from Foster Farms’s own attorneys that

reinforce the broad scope of this case, including a statement

that “[t]hough brought by a lone employee, the case

potentially had a much broader application to the workplace.”

Nor did the district court err in concluding that the issues

in this case are close and complicated. According to the

district court, “[t]he issues presented in this case required

close attention to detail, including hearing and understanding

expert testimony on proper HR policies—testimony not

typically needed in FMLA cases—and understanding FMLA

regulations and their application to the facts.” Escriba v.

Foster Poultry Farms, Inc., No. 1:09-CV-1878, 2012 WL

174847, at *5 (E.D. Cal. Jan. 20, 2012). The case addresses

an important legal question that turns on the careful

evaluation of witness testimony and circumstantial evidence.

Given these factors, the district court appropriately concluded

that Escriba’s case was close.

The district court also concluded that Escriba’s limited

financial resources weighed against taxing her with Foster

Farms’s costs. Costs are properly denied when a plaintiff

“would be rendered indigent should she be forced to pay” the

amount assessed. Stanley v. Univ. of S. Cal., 178 F.3d 1069,

24 ESCRIBA V. FOSTER POULTRY FARMS

1080 (9th Cir. 1999). Escriba earned an average of $11,622

per year while working for Foster Farms, meaning that the

costs being sought by the company exceed her average annual

earnings. Moreover, the record reflects that Escriba’s efforts

to secure steady employment post-termination have been

unsuccessful.

The district court further concluded that taxing costs in

the instant case would present a serious danger of chilling

future FMLA actions. In arriving at this conclusion, the

district court relied on declarations from the director of the

California Department of Fair Employment and Housing and

a letter from the United States Department of Labor, both of

which recommended that taxing costs would chill future

actions because low-wage earners would be reluctant to file

suit.

Although Foster Farms maintains that the consideration

of the chilling effect of a particular imposition of costs is

appropriate only when addressing “overwhelming costs in

important, close, but ultimately unsuccessful civil rights

cases,” see Association of Mexican-American Educators,

231 F.3d at 593, the company’s quotation from that case is

incomplete. The entire quote reads as follows: “In keeping

with [our prior decision], we note that divesting district courts

of discretion to limit or to refuse such overwhelming costs in

important, close, but ultimately unsuccessful civil rights cases

like this one might have the regrettable effect of discouraging

potential plaintiffs.” Id.

Foster Farms’s quotation omits crucial language about a

district court’s discretion, which affords such a court an

element of flexibility in evaluating the suitability of awarding

costs in a particular case. Although the costs sought by

ESCRIBA V. FOSTER POULTRY FARMS 25

Foster Farms might be considered modest when compared to

amounts sought in other, larger cases, even modest costs can

discourage potential plaintiffs who, like Escriba, earn low

wages.

Foster Farms also argues that the district court abused its

discretion by considering the economic disparity between the

parties. The court emphasized that Foster Farms “is a multi-

state operation with more than 10,000 employees and a global

product line, which made approximately 2 billion dollars in

revenue in 2007 and 2009.” Escriba, 2012 WL 174847, at

*4. Although Foster Farms disputes whether Association of

Mexican-American Educators permits a district court to

consider the parties’ relative economic power—and directs us

to contrary authorities from our sister circuits—the en banc

opinion clearly states that the “reasons that the district court

gave for refusing to award costs . . .were appropriate,” and

those reasons included the “great economic disparity”

between the parties. 231 F.3d at 592–93. The district court

therefore did not err in denying costs based in part on

Escriba’s “limited financial resources.” See Champion

Produce, Inc. v. Ruby Robinson Co., 342 F.3d 1016, 1022

(9th Cir. 2003).

Finally, Foster Farms encourages the panel to approach

the district court’s decision not to tax costs with skepticism

because Judge O’Neill, who entered the order denying costs,

was not the judge who presided at trial. Judge Wanger

presided over the trial and entered final judgment in favor of

Foster Farms. The case was reassigned to Judge O’Neill only

after Judge Wanger retired from the bench. Foster Farms

points out that Judge Wanger included a sentence at the end

of his final order in this case providing (without explanation)

that “Defendant is entitled to recover [its] costs of suit.” This

26 ESCRIBA V. FOSTER POULTRY FARMS

has prompted Foster Farms to argue that “Judge O’Neill had

no more familiarity with the underlying facts than do the

judges of this court,” a fact that “very strongly suggests that

this court should view Judge O’Neill’s contrary order

skeptically, and not afford it the benefit of any deference.”

But Judge Wanger’s statement that “Defendant is entitled

to recover [its] costs of suit” is not a ruling on Escriba’s

motion to review the taxation of costs. Indeed, Escriba’s

motion was not pending before Judge Wanger at that time

because the parties had not even briefed the issue of costs.

Given these facts, Judge Wanger’s unsupported statement is

more readily understood as a blanket recitation of Rule 54’s

presumption in favor of costs rather than an actual

determination on the merits. We therefore find no reason to

apply a heightened standard of review to Judge O’Neill’s

order, nor do we believe that the district court abused its

discretion in declining to award the costs of suit to Foster

Poultry.

III. CONCLUSION

For all the reasons set forth above, we AFFIRM the

judgment of the district court. Each party shall bear its own

costs of this appeal.