Ken Eau Claire v. HOME DEPOT USA, INC. and THD AT- HOME SERVICES, INC.

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KEN EAU CLAIRE,
Plaintiff-Appellant,
v.
HOME DEPOT USA, INC. and THD AT-
HOME SERVICES, INC.,
Defendants-Appellees,
and
DOES, 1-10,
Defendant.
No. 17-35158
D.C. No.
1:15-cv-00084-EJL-CWD
MEMORANDUM*
Appeal from the United States District Court
for the District of Idaho
Edward J. Lodge, District Judge, Presiding
Argued and Submitted June 6, 2018
Portland, Oregon
Before: M. SMITH and MURGUIA, Circuit Judges, and KORMAN,** District
Judge.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Edward R. Korman, United States District Judge for
the Eastern District of New York, sitting by designation.
FILED
JUN 28 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Plaintiff-Appellant Ken Eau Claire appeals from the district court’s grant of
summary judgment to Defendants-Appellees Home Depot U.S.A., Inc. (Home
Depot) and THD At-Home Services, Inc. (THD) on his claims that Home Depot
and THD jointly interfered with his rights under the Family and Medical Leave Act
of 1993 (FMLA), 29 U.S.C. §§ 2601–2654. We have jurisdiction pursuant to 28
U.S.C. § 1291, and we affirm.
1. Eau Claire bore the burden to “prove by a preponderance of the evidence
that [his] taking of FMLA-protected leave constituted a negative factor in the
decision to terminate [him].” Bachelder v. Am. W. Airlines, Inc., 259 F.3d 1112,
1125 (9th Cir. 2001). He has not shown that a genuine issue of material fact exists.
He acknowledged that his unilateral cancellation of a month of appointments
contravened his employer’s principles of customer service, and he had three
warnings about his job performance prior to his leave. The district court did not
err in granting summary judgment on this claim.
2. Eau Claire bore the burden to establish a prima facie case that his employer
failed to reinstate him to his original or an equivalent position after he returned
from leave. See Sanders v. City of Newport, 657 F.3d 772, 778 (9th Cir. 2011).
Upon Eau Claire’s return from leave, he was reinstated to a position that
“involve[d] the same or substantially similar duties and responsibilities” as his pre-
leave position. 29 C.F.R. § 825.215(a). Eau Claire’s restricted computer access

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did not render his position substantially dissimilar from before. Eau Claire had no
sales consultants working for him immediately before or after his leave, and so his
restricted computer access amounted to a functionally immaterial change. The
district court did not err in granting summary judgment on this claim.
3. Finally, Eau Claire has not shown a genuine issue of material fact precluding
the district court’s conclusion that Home Depot and THD were not his joint
employers under the FMLA. Eau Claire has not proffered evidence satisfying the
factors for FMLA joint employer liability set forth in Moreau v. Air France, 356
F.3d 942 (9th Cir. 2004). Summary judgment was therefore proper.
AFFIRMED.

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