JOSEPH J. MUNGER, Sr. v. CASCADE STEEL ROLLING MILLS, INC., a domestic business corporation

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSEPH J. MUNGER, Sr.,
Plaintiff-Appellant,
v.
CASCADE STEEL ROLLING MILLS,
INC., a domestic business corporation,
Defendant-Appellee.
No. 21-35573
D.C. No. 3:18-cv-00970-SB
MEMORANDUM*
JOSEPH J. MUNGER, Sr.,
Plaintiff-Appellee,
v.
CASCADE STEEL ROLLING MILLS,
INC., a domestic business corporation,
Defendant-Appellant.
No. 21-35618
D.C. No. 3:18-cv-00970-SB
Appeal from the United States District Court
for the District of Oregon
Stacie F. Beckerman, Magistrate Judge, Presiding
Argued and Submitted November 10, 2022
Portland, Oregon
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
JAN 9 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Before: CLIFTON and H.A. THOMAS, Circuit Judges, and BAKER,**
International Trade Judge.
Partial Concurrence and Partial Dissent by Judge BAKER.
Plaintiff Joseph J. Munger, Sr., appeals the district court’s order granting
Defendant Cascade Steel Rolling Mills’s (Cascade) motion for summary judgment.
Cascade cross-appeals the district court’s failure to adopt its alternative arguments.
To prevail on a motion for summary judgment, a party must show “that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). We have appellate jurisdiction under 28 U.S.C. § 1291. We dismiss
Cascade’s cross-appeal for lack of standing. We affirm the district court’s grant of
summary judgment.
1. As a threshold matter, because Cascade has not been adversely
affected by the district court’s grant of summary judgment in its favor, we lack
jurisdiction over its cross-appeal. See D’Lil v. Best W. Encina Lodge & Suites, 538
F.3d 1031, 1035 (9th Cir. 2008) (holding that “whether or not the parties raise the
issue,” we are “required sua sponte to examine jurisdictional issues such as
standing.” (cleaned up)). Because Article III of the Constitution permits courts to
hear only “controversies,” it is a fundamental rule of appellate procedure that
** The Honorable M. Miller Baker, Judge for the United States Court of
International Trade, sitting by designation.

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“[o]nly one injured by the judgment sought to be reviewed can appeal.” Parr v.
United States, 351 U.S. 513, 516 (1956); see also Lujan v. Defs. of Wildlife, 504
U.S. 555, 560 (1992) (“[T]he irreducible constitutional minimum of standing”
includes an “injury in fact.”). As Cascade conceded during oral argument, because
the district court ultimately granted its motion for summary judgment, it has not
been injured by the decision below. Its “cross-appeal” merely raised alternative
grounds to defend the judgment. Cascade’s cross-appeal is therefore dismissed.
2. The district court properly granted summary judgment to Cascade on
Munger’s Family Medical Leave Act of 1993 (FMLA) and Oregon Family Leave
Act (OFLA) interference claims. We analyze FMLA and OFLA claims together
because OFLA claims are to “be construed to the extent possible in a manner that
is consistent with any similar provisions of the [FMLA].” Or. Rev. Stat.
§ 659A.186(2); see Sanders v. City of Newport, 657 F.3d 772, 783 (9th Cir. 2011).
To recover on his interference claims, Munger must establish that: “(1) 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 provided sufficient notice of
his intent to take leave, and (5) his employer denied him FMLA benefits to which
he was entitled.” Escriba v. Foster Poultry Farms, Inc., 743 F.3d 1236, 1243 (9th
Cir. 2014) (quoting Sanders, 657 F.3d at 778).
Because Munger did not provide information to Cascade sufficient to

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demonstrate that he was requesting leave for a qualifying condition and failed to
respond to Cascade’s request for more information, Cascade was entitled to
summary judgment on the FMLA and OFLA interference claims. The applicable
regulations are clear that a “[f]ailure to respond to reasonable employer inquiries
regarding [a] leave request may result in denial of FMLA protection if the
employer is unable to determine whether the leave is FMLA-qualifying.” 29 C.F.R.
§ 825.303(b).
For his leave to be FMLA-qualifying, Munger must have suffered from a
serious health condition. 29 U.S.C. § 2612(a)(1)(D); see 29 U.S.C. § 2611(11)
(defining a “serious health condition” as one requiring either inpatient hospital care
or “continuing treatment by a health care provider”). But Munger never provided
Cascade with medical records of a serious health condition that required inpatient
care or continuing treatment. The two doctor’s notes Munger provided did not
include any diagnosis. The notes stated that Munger was “seen and treated” but
could return to work the next day or the day after. To determine whether Munger’s
leave was FMLA-qualifying, Cascade emailed Munger that he needed to contact
its third-party administrator, FMLASource. Cascade also told Munger in person
two days later about the email and, because there was “an issue that [he] need[ed]

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to resolve,” directed him to talk with Human Resources.1 Munger did neither. By
failing to respond to Cascade’s requests for information, Munger lost the right to
FMLA protection.
3. The district court also properly granted summary judgment to Cascade
on Munger’s FMLA and OFLA retaliation claims. To succeed on his retaliation
claims, Munger had the burden of showing 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). Because Munger did
not provide sufficient notice, he did not actually take FMLA-protected leave; thus,
such leave could not have constituted a negative factor in Cascade’s decision to
terminate him.
Cascade’s cross-appeal is DISMISSED. The district court’s grant of
summary judgment for Cascade is AFFIRMED. Each party is directed to bear its
own costs on appeal.
1 We acknowledge that Munger disputes whether he received actual notice from
Cascade. But Munger does not dispute the facts discussed above. Upon
independent review of the record, we agree with the district court that, viewing the
evidence in the light most favorable to Munger, no reasonable juror could find that
Cascade failed to provide Munger with actual notice of Cascade’s need for further
supporting information. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986) (“Where the record taken as a whole could not
lead a rational trier of fact to find for the non-moving party, there is no genuine
issue for trial.” (cleaned up)); cf. Nigro v. Sears, Roebuck & Co., 784 F.3d 495,
497 (9th Cir. 2015) (“[A] self-serving declaration does not always create a genuine
issue of material fact for summary judgment.”).

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Munger v. Cascade Steel Rolling Mills, Inc.,
Nos. 21-35573 and 21-35618
BAKER, Judge, concurring in part and dissenting in part:
I join the disposition’s dismissal of the cross-appeal by Cascade Steel Rolling
Mills, Inc. (Cascade). I respectfully dissent, however, from my colleagues’ conclu-
sion that “[b]ecause [appellant Joseph] Munger did not provide information to Cas-
cade sufficient to demonstrate that he was requesting leave for a qualifying condi-
tion, and failed to respond to Cascade’s request for more information, Cascade was
entitled to summary judgment on the FMLA [Family Medical Leave Act of 1993]
and OFLA [Oregon Family Leave Act] interference claims.” Mem. at 4 (emphasis
added). In my view, there are disputed issues of material fact as to both these related
questions, and therefore I would reverse and remand for a trial.
Before turning to the merits, it’s important to briefly frame the separate issues
on appeal lest they blur together.
The district court granted summary judgment in favor of Cascade on two sep-
arate and independent grounds. First, the district court held that Munger’s FMLA
interference claim failed because he did not timely submit his FMLA leave request
to Cascade’s third-party administrator, FMLASource, as required by the company’s
updated leave policy, and that Munger received actual notice of that policy. Second,
the district court held that Munger’s claim failed for the additional reason that he
failed to establish that “he provided Cascade with sufficient notice to trigger the
FMLA’s protections.”
FILED
JAN 9 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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The majority affirms on the district court’s second ground (that Munger pro-
vided insufficient notice of his leave request) and does not reach the first (that
Munger’s failure to submit his request to FMLASource justified its denial).1 There-
fore, for purposes of determining whether Munger provided sufficient notice, we
must assume that he was not required to submit his leave request to FMLASource.
With that important distinction flagged, I turn to whether Munger provided sufficient
notice.
1. On May 25, 2016, Munger obtained approval from his supervisor to leave
work because of severe abdominal pain. He invoked FMLA and plant security gave
this as the reason for Munger’s leave on Cascade’s daily attendance record.
Munger’s wife picked him up from the plant in the middle of the night (he worked
the graveyard shift) and took him to a hospital emergency room. After a battery of
tests and treatment for his pain, the attending physician gave Munger two notes in-
dicating that he could return to work on May 26 and May 27. The physician also
suggested that Munger seek follow up treatment “if necessary as needed.”
The next day, Thursday, May 26, at 2:56 p.m. Munger emailed the first doc-
tor’s note (indicating a return date of May 26) to his shop clerk, Kimberly Bartlett,
copying his supervisor, Tom Kniola. He followed that up the next morning at 9:29
1 As the majority expresses no view on this alternative basis for the district court’s
decision, neither do I.

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a.m. with another email to Bartlett (again copying Kniola) and attaching a second
note from the same doctor (indicating a return date of May 27).
The relevant regulation only requires that an employee claiming FMLA leave
“provide sufficient information for an employer to reasonably determine whether the
FMLA may apply to the leave request. Depending on the situation, such information
may include that a condition renders the employee unable to perform the functions
of the job . . . .” 29 C.F.R. § 825.303(b) (emphasis added). Thus, the regulation does
not require an employee claiming FMLA leave to definitively establish that FMLA
applies to his or her request, as both we and the Third Circuit have recognized. See
Bachelder v. Am. W. Airlines, Inc., 259 F.3d 1112, 1130 (9th Cir. 2001) (“Employees
need only notify their employers that they will be absent under circumstances which
indicate that the FMLA might apply . . . .”) (emphasis added); Lichtenstein v. Univ.
of Pittsburgh Med. Ctr., 691 F.3d 294, 303 (3d Cir. 2012) (“The regulations thus
clearly envision situations where an employee can satisfy her notice obligation with-
out providing enough detailed information for the employer to know if FMLA actu-
ally applies.”).
Whether an employee’s notice is sufficient under this permissive standard de-
pends upon the “facts and circumstances of the particular case.” 29 C.F.R.
§ 825.303(a). If anything, given the recitation of the facts described above, the dis-
trict court erred in not granting Munger’s cross-motion for partial summary

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judgment on this issue.2 After all, it’s hard to see what else Munger could have done
to put Cascade on notice that he might be FMLA-qualified.3 He had his wife pick
him up from work in the middle of the night to take him to the ER, where an attend-
ing physician provided him notes indicating that he could not “perform the functions
of [his] job” for two days. 29 C.F.R. § 825.303(b). Munger then expressly sought
FMLA leave and provided those notes to Cascade. Thus, I would hold that a genuine
issue of material fact exists as to the sufficiency of the content of his FMLA notice
under the permissive regulatory standard.
2. Once an employer receives a notice from an employee that FMLA “may
apply to the leave request,” 29 C.F.R. § 825.303(b) (emphasis added), the regulation
mandates that the “employer [shall] obtain any additional required information
through informal means.” Id. (emphasis added). The regulation in turn requires the
employee “to respond to an employer’s questions designed to determine whether an
absence is potentially FMLA-qualifying. Failure to respond to reasonable employer
inquiries regarding the leave request may result in denial of FMLA protection if the
2 On appeal, Munger does not challenge this ruling by the district court.
3 Indeed, it seems to me that the only thing missing from Munger’s notice for pur-
poses of establishing that he was definitively FMLA-eligible was a statement from
his attending physician that Munger had been instructed to receive continuing treat-
ment. See 29 U.S.C. § 2611(11) (defining a “serious health condition”—a prerequi-
site for FMLA eligibility, see 29 U.S.C. § 2612(a)(1)(D)—as one requiring either
inpatient hospital care or “continuing treatment by a health care provider”).

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employer is unable to determine whether the leave is FMLA-qualifying.” Id. (em-
phasis added).
So now we come to the crux of the issue. Instead of responding to Munger’s
leave request in good faith with reasonable inquiries to determine whether Munger
was FMLA-eligible as the regulation requires, the record at least arguably reflects
that Cascade decisionmakers saw an opportunity to finally rid the company of this
meddlesome crane operator.
Just 19 minutes after the receipt of Munger’s 2:56 p.m. email with the doctor’s
note on Thursday, May 26, Kniola (apparently Munger’s immediate supervisor)
emailed the head of HR, Greg Moore, and two other staff members stating:
Joe Munger went home sick two days ago, and called off sick yesterday.
He called off FMLA, but it looks like he will be at work tonight. He has
a suspension for attendance on the books, and the verbal doesn’t drop
off until September. Is this FMLA, or is this attendance incidents, and
potential termination?
(Emphasis added).
Less than an hour later, at 4:06 p.m., one of the staff members, Teresa Smith,
replied to all:
If he has not exhausted his Vacation Sick hours, he is able to use up to
40 since 1/1/16. If he has, he has 48 hours to contact FMLASource [the
third-party administrator] to initiate an FMLA claim. If he does not con-
tact them, and it is not covered by FMLA, and he does not have Vaca-
tion Sick still available, it would be an incident for each day not cov-
ered. The fact that he provided a doctor’s excuse shows that he is trying
to make another statement. I’m not sure where he was 12 months back,
so a discipline may have fallen off.

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(Emphasis added).
The following morning, Friday, May 27, one of the other staff members re-
plied to all at 6:59 a.m. to advise that Munger “used all his sick vacation hours this
year. No discipline has fallen off.”
Less than two hours later, at 8:40 a.m., Smith replied to all and stated, “If he
does not contact FMLASource by Tuesday (assuming yesterday was the call-off),
they can be entered as incidents. If this puts him at termination, we probably need to
meet with Greg [Moore].” (Emphasis added).
Shortly thereafter, at 9:29 a.m., Munger sent another message to Kimberly
Bartlett, copying Kniola, forwarding his second doctor’s note (indicating a return
date of that same day, May 27) with the comment “FYI.” Three minutes later, Bart-
lett forwarded that message to Smith, Kniola, and another staffer, also stating simply
“FYI.”
Twelve minutes later, at 9:44, Smith hit reply-all, added Moore, and com-
mented, “So he provided a note to return yesterday, and then didn’t? Now he pro-
vided another one? What time did he call off again yesterday? So sorry for all of the
questions. Nothing changes, [w]e don’t accept doctor’s excuses, and unless he has
initiated FMLA by Tuesday, he receives incidents.” Two minutes later, Bartlett re-
plied to all to advise that Munger had called off at 3:49 the previous afternoon.

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After this flurry of emails on the morning of Friday, May 27, for the remainder
of the day no one at Cascade made any attempt to let Munger know that the company
needed more detail about his condition and treatment to determine whether he was
FMLA-eligible.
That weekend was Memorial Day weekend. The following Tuesday morning,
May 31, Bartlett emailed Munger, copying Moore and three others, advising Munger
that he needed to contact FMLASource by the end of the day or else he would receive
three “attendance incidents per the attendance policy.”4 Critically for purposes of
the issue before us, Bartlett made no request for information relevant to whether
Munger was FMLA-eligible.
Sixteen minutes later, at 10:27 a.m., Moore (the HR chief) emailed a subordi-
nate with a request:
[W]e have an employee here, Joe Munger, who has until today to con-
tact FMLA Source to initiate FMLA for call offs last week. There is a
long history with this employee, but I would ask that you please follow
up with FMLA Source and let me know tomorrow morning if a claim
was initiated by him. We need to know in order to initiate the appropri-
ate action here should he not initiate a claim. This is a very critical sit-
uation for us with timing so we would appreciate your help as we want
nothing slipping through with this employee.
(Emphasis added).
4 Because Munger had already exhausted his ordinary sick leave, this would be
grounds for his termination.

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Two days later, on Thursday, June 2, two of Munger’s supervisors summoned
him for a meeting at approximately 6:00 a.m. They notified him that he was receiv-
ing “attendance incidents” for absences beginning with his visit to the ER on May
26. When Munger replied that these absences should be covered by FMLA, he was
asked if he had submitted any FMLA paperwork. Munger replied that no one had
sent him any paperwork. His supervisors then presented him with a notice of disci-
pline for violating the company’s attendance policy. They then asked if he had re-
ceived the email Bartlett sent the day before. Munger responded that he had not
checked his email and that he had previously requested Bartlett not communicate by
email. They told him to follow up with Smith in HR to find out what his obligations
were.
Significantly, neither of his supervisors informed Munger of the content of
the email or told him to contact FMLASource, much less (as relevant here) that he
needed to supply additional information to Cascade to confirm that he was FMLA-
eligible.
Munger returned to his shift as a crane operator, where he was not permitted
to use his phone for safety reasons. Before his shift ended, and before he contends
he had an opportunity to either check his email or call HR, he was summoned to
another meeting around 10:00 a.m., this time with Greg Moore, the head of HR. At
that meeting, Moore suspended Munger pending termination because of excessive

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absences and asked him to turn in his badge. Formal termination followed the next
day.
What’s telling here—and arguably damning from a jury’s perspective—is that
although the company knew on the afternoon of Thursday, May 26, 2016, that it
needed more information to determine whether Munger was FMLA-qualified, Cas-
cade waited two business days, until the following Tuesday (May 31), to respond.
(Not coincidentally, that was also the last day for Munger to submit his FMLA claim
to FMLASource under the company policy.)
When HR finally responded on the morning of May 31, rather than communi-
cating with Munger directly in person at work or by telephoning him, HR chose to
respond indirectly by email, even though Munger had previously told HR not to
communicate with him by email because he checks it infrequently.
It was not until 6:00 a.m. on Thursday, June 2, that Cascade managers told
Munger that his FMLA claim was deficient. Even then, they only told him to follow
up with HR and check his email. They didn’t tell him the nature of the deficiency
relevant here—that he needed to supply more detail about his diagnosis and whether
he needed continuing treatment. Approximately four hours later, the head of HR
suspended Munger.
The majority concludes no reasonable jury could find that “Cascade failed to
provide Munger with actual notice of [the company]’s need for further supporting

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information.” Mem. at 5 n.1. The majority cites the May 31 email and the 6:00 a.m.
meeting on June 2, where Munger was directed to contact HR. Id. at 5. The majority
faults Munger for not acting on the May 31 email or contacting HR after being so
advised in the June 2 meeting. Id.
The May 31 email was insufficient to provide notice because Munger had
previously told HR that he only checks his email once a week.5 And the meeting at
6:00 a.m. on June 2 occurred only a few hours before Cascade suspended him. Be-
cause Munger had to return to work after that meeting, a jury might easily conclude
that it was unreasonable for the company to give him only a few hours to submit the
relevant information.6
In short, Cascade’s response to Munger’s FMLA leave request was delayed,
indirect, and oblique. When combined with statements about Munger’s “history,”
his making “another statement,” and the need to avoid letting anything “slip[ ]
through with this employee,” a jury might conclude that the company prioritized
terminating Munger rather than complying with its regulatory obligation to make
5 Munger’s credibility as a witness is a matter for the jury to determine, not us.
6 It seems unlikely it would have made any difference even if Munger had somehow
managed to supply the relevant information in the few hours between his two meet-
ings with management on the morning of June 2. Management appeared to be look-
ing for a reason to terminate him, and his failure to submit a leave request to FMLA-
Source by May 31 provided the excuse the company needed. In any event, these are
quintessential factual issues for a jury to sort through.

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“reasonable” efforts to determine whether he was FMLA-qualified. I therefore re-
spectfully dissent from the majority’s conclusion that the few hours’ actual notice
provided by Cascade complied as a matter of law with the company’s regulatory
obligation to make “reasonable” efforts to determine whether Munger was so quali-
fied. 29 C.F.R. § 825.303(b).7 On this record, that is a question for the jury.
7 The regulatory requirement that an employer make “reasonable” inquiries to deter-
mine whether an employee is FMLA-qualified necessarily implies that the former
will give the latter a reasonable amount of time to respond to such inquiries.

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