FILED
NOT FOR PUBLICATION
MAR 02 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DANIELLE RICHARD, No. 14-15568
Plaintiff - Appellant, D.C. No. 3:12-cv-00423-MMD-
WGC
v.
CARSON TAHOE REGIONAL MEMORANDUM*
HEALTHCARE,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Nevada
Miranda M. Du, District Judge, Presiding
Submitted February 12, 2016**
San Francisco, California
Before: NOONAN and MURGUIA, Circuit Judges and MURPHY,*** District
Judge.
*
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).
***
The Honorable Stephen Joseph Murphy III, United States District
Judge for the Eastern District of Michigan, sitting by designation.
Danielle Richard appeals the district court’s order granting summary
judgment to her former employer, Carson Tahoe Regional Healthcare (Carson
Tahoe), on her claims for retaliatory discharge under the Fair Labor Standards Act
(FLSA) and Nevada state law. We affirm.
1. The FLSA prohibits an employer from retaliating against an employee
based on the employee’s complaint of FLSA violations. 29 U.S.C. § 215(a)(3).
For an employee’s complaint to be protected, it “must be sufficiently clear and
detailed for a reasonable employer to understand it . . . as an assertion of rights
protected by the statute and a call for their protection.” Kasten v. Saint-Gobain
Performance Plastics Corp., 563 U.S. 1, 14 (2011). Here, Richard concedes that
the FLSA did not require Carson Tahoe to provide her with breaks. Moreover,
there is no evidence that Richard asserted a legal right to take breaks, or that she
complained that Carson Tahoe was not compensating her for the break time that
she worked. Because Richard did not assert that any rights protected by the FLSA
were being violated, she did not engage in protected activity under the FLSA, and
the district court properly granted summary judgment to Carson Tahoe on
Richard’s FLSA claim. See Lambert v. Ackerley, 180 F.3d 997, 1007 (9th Cir.
1999) (en banc) (“[N]ot all amorphous expressions of discontent related to wages
and hours constitute complaints filed within the meaning of § 215(a)(3).”); cf.
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Rosenfield v. GlobalTranz Enter., Inc., — F.3d —, 2015 WL 8599403, at *5 (9th
Cir. Dec. 14, 2015) (reversing a grant of summary judgment for an employer where
a former employee complained about specific FLSA violations on more than 30
occasions, because, viewing the evidence in the light most favorable to the former
employee, the employee’s “superiors actually understood (or reasonably should
have understood) that [the employee] was asserting rights protected by the FLSA
and was calling for their protection”).
2. Richard cannot succeed on her Nevada state law claim for tortious
discharge, for two reasons. First, Richard must show that retaliation was the sole
proximate cause of her termination. Allum v. Valley Bank of Nev., 970 P.2d 1062,
1066 (Nev. 1998). Here, no reasonable jury could find that Richard was not
terminated at least in part due to her disciplinary violations, including her false
time records. See Bailey v. Sw. Gas Co., 275 F.3d 1181, 1187 (9th Cir. 2002)
(holding that an employee failed to show that retaliation was the sole proximate
cause of her termination where the evidence showed she was terminated for failing
to cooperate with a legitimate medical investigation). Second, Richard must show
that her termination violated a compelling public policy. Wayment v. Holmes, 912
P.2d 816, 818 (Nev. 1996). Here, Richard submitted insufficient evidence to show
that Carson Tahoe’s break policy was either illegal or dangerous to nurses or
3
patients, so she has not established that her termination violated a compelling
public policy. See Bailey, 275 F.3d at 1187 (holding that an employee’s assertion
that fatigue from overtime made employees dangerous drivers did not establish a
compelling public policy).
AFFIRMED.
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