Sheryl Silver v. CORINTHIAN COLLEGES, INC., a Delaware corporation

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SHERYL SILVER,
Plaintiff-counter-defendant -
Appellant,
v.
CORINTHIAN COLLEGES, INC., a
Delaware corporation,
Defendant-counter-claimant -
Appellee.
No. 12-56221
D.C. No. 8:11-cv-01127-AG-RNB
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Andrew J. Guilford, District Judge, Presiding
Submitted April 9, 2014**
Pasadena, California
Before: FERNANDEZ, N.R. SMITH, and MURGUIA, Circuit Judges.
Sheryl Silver sued her former employer, Corinthian Colleges, Inc.
(“Corinthian”), for (1) interference with her putative Family Medical Leave Act
FILED
APR 25 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

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(“FMLA”) rights, (2) wrongful termination in violation of public policy, and (3)
failure to pay all wages owed upon termination under California Labor Code § 201.
The district court granted summary judgment on all claims. Reviewing de novo,
Travelers Cas. & Sur. Co. of Am. v. Brenneke, 551 F.3d 1132, 1137 (9th Cir.
2009), we affirm.
The district court properly granted summary judgment on Silver’s claim that
Corinthian had interfered with her purported FMLA rights by failing to notify her
of such rights. An “employer is liable [under 29 U.S.C. § 2617] only for
compensation and benefits lost ‘by reason of the violation,’ for other monetary
losses sustained ‘as a direct result of the violation,’ and for ‘appropriate’ equitable
relief . . . .” Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 89 (2002)
(citations omitted); see also 29 U.S.C. § 2617(a)(1). Silver presented no evidence
that she lost compensation or benefits, or otherwise suffered monetary losses, due
to Corinthian’s failure to notify her. While Silver did present evidence of her
claimed equitable relief in the form of front pay, see Traxler v. Multnomah Cnty.,
596 F.3d 1007, 1011 (9th Cir. 2010), the FMLA does not provide a remedy for an
injury resulting solely from termination for misconduct. See § 2614(a)(3)(B)
(“Nothing in [the FMLA] shall be construed to entitle any restored employee to . . .
any right, benefit, or position of employment other than any right, benefit, or
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position to which the employee would have been entitled had the employee not
taken the leave.”); 29 C.F.R. § 825.216(a) (“An employee has no greater right to
reinstatement or to other benefits and conditions of employment than if the
employee had been continuously employed during the FMLA leave period.”). In
the district court, Silver did not dispute that Corinthian terminated her employment
solely due to her misconduct, barring any argument to the contrary on appeal. See
United States v. Kitsap Physicians Serv., 314 F.3d 995, 999 (9th Cir. 2002).
Silver waived any other theories of how Corinthian interfered with her
alleged FMLA rights by failing to raise them in the district court. See Baccei v.
United States, 632 F.3d 1140, 1149 (9th Cir. 2011) (“[W]e will not reframe an
appeal to review what would be in effect a different case than the one decided by
the district court.”).
Silver’s claim for wrongful termination in violation of the public policy
embodied in the FMLA fails, because she did not allege a causal nexus between
her termination and Corinthian’s failure to notify her of her potential FMLA rights.
See Dep’t of Fair Emp’t & Hous. v. Lucent Techs., Inc., 642 F.3d 728, 749 (9th
Cir. 2011) (citing Turner v. Anheuser-Busch, Inc., 876 P.2d 1022, 1034 (Cal.
1994)).
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Finally, Silver waived her California Labor Code claim by expressly
abandoning it in the district court. See United States v. Kitsap Physicians Serv.,
314 F.3d 995, 999 (9th Cir. 2002).
Corinthian’s motion for judicial notice is GRANTED.
The judgment of the district court is AFFIRMED.
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