appellant's petition for panel rehearing

Selected docket entries for case 14−56297

Generated: 10/17/2016 22:17:43

Filed Document Description Page Docket Text

10/17/20169 Filed (ECF) Appellant Gary B. Jefferson petition for panelrehearing (from 10/04/2016 memorandum). Date ofservice: 10/17/2016. [10162899] [14−56297] (Jefferson,Gary)

9 Main Document 2

9 Additional Document 7



(1 of 12)

https://ecf.ca9.uscourts.gov/docs1/009028460105





No. 14-56297

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Gary B. Jefferson

Plaintiff -Appellant,

vs.

Time Warner Cable, Inc.; et al.

Defendant-Appellee.

Appeal from the United States

District Court for Central

California, Los Angeles

D.C. No. 2:14--CV-01345-GW-(CW)

APPELLANT’S PETITION FOR PANEL REHEARING

Gary B. Jefferson, EJD

5408 West Boulevard

Los Angeles, CA 90043

Tele: (323) 295-7012

Fax: (323) 295-7012

Email: [email protected]

In Pro Se

Case: 14-56297, 10/17/2016, ID: 10162899, DktEntry: 9-1, Page 1 of 5(2 of 12)

STATEMENT OF JURISDICTION

The final judgment issued by the Panel on October 4, 2016 is the basis for

appellate jurisdiction. 28 U.S.C. § 1291 authorizes the Court of Appeals

jurisdiction over post-judgment orders where a final decision disposes all of the

claims in favor of a party.

PURPOSE OF PETITON FOR PANEL REHEARING

A material point of fact was overlooked in the decision.

There is a window that predates and precludes ERISA jurisdiction which,

as a consequence, would nullify the Court’s affirmation(s).

INTRODUCTION

The material point of fact stated in the “Purpose section” invalidates the

affirmation by the Court as stated herein and therefore, compels

resolution in order for justice to prevail.

1. There is a window that predates and precludes ERISA jurisdiction over

[b]oth Time Warner Cable’s “admitted acts of FMLA Retaliation” and

the charge of Hostile Work Environment.

2. This window revives the Continuous Tort Doctrine, and quashes the

Court’s affirmations of res judicata and “no abuse of discretion” in

dismissing Jefferson’s action without leave to amend.

3. To avoid both judicial error and prejudice capable of effecting the

outcome of a case, “confirmation of when the ERISA action commenced

is paramount.” [Emphasis]

Page 1


STATEMENT OF FACTS

1. The relevant dates of ERISA non-applicability began on July 5, 2011 and

ended on July 26, 2011.

2. Plaintiff’s ERISA claim for Short Term Disability began on July 27,

2011. “See 3 page attachment: Short Term Disability Claim Overview;

Claim Number 6877240” for verification of the commencement date.

3. The applicable days of ERISA non-applicability (July 5, 2011 through

July 26, 2011) is a total of “16 days.” Thus, a total of “128 hours” of the

480 hours allocated under the Act. [Emphasis]

4. UNUM, Time Warner Cable’s third party administrator, wore two hats:

a. FMLA Eligibility Administration

b. ERISA Claims Administration

5. The relevant period of ERISA non-applicability falls under UNUM’S

FMLA Eligibility Administration.

6. UNUM’S authority under the FMLA Eligibility Administration hat was

limited to “approval of FMLA eligibility and, FMLA absence

determination and confirmation.” [Emphasis]

7. UNUM was not empowered to discipline the plaintiff for his use of

approved FMLA absences.

8. Discipline was always the purview of Time Warner Cable.

CONCLUSION

Due to facts 1 through 8 stated supra in the Statement of Facts, the claims of

FMLA Retaliation and Hostile Work Environment during the ERISA non-

applicability window do not fall under ERISA jurisdiction and therefore, do not

Page 2


provide an ERISA remedy. Therefore, Stewart v. U.S. Bancorp, 297 F.3d 953 (9th

Circuit 2002) is not an endorsement of res judicata where claims could not have

been raised in a prior action because the claims predate ERISA commencement.

Because the claims do not arise from an ERISA action, the Continuous Tort

Doctrine is available for the charges of FMLA Retaliation and Hostile Work

Environment during the ERISA non-applicability window under the facts stated

herein, as well as, in the Appellant’s Reply Brief under National Railroad

Passenger Corporation v. Morgan, No. 00-1614, (9th Cir 2002), 536 U.S. 101

(2002), 232 F.3d 1008 (2000). The record confirms that the defendant’s acts are

unlawful under [b]oth the FMLA Statute and FMLA Regulations and their

[c]ontinuous nature, create a hostile environment where the Plaintiff and “any

reasonable person” would naturally contemplate the unlawful termination of their

employment for the inability to perform as a consequence of using their lawful

FMLA protected absences.

For the purpose of ERISA preemption, Stewart v. U.S. Bancorp does not absolve

the court of its responsibility to [b]oth confirm and take into account when

Jefferson’s ERISA action began. Stewart v. U.S. Bancorp empowers the Court to

disregard claims only “if they were or could have been raised in a prior action.”

Pursuant to the facts stated herein, the unlawful employment actions committed by

Time Warner Cable during the ERISA non-applicability window are insufficient for

preemption. [Emphasis]

Thus, the district court ruling constitutes judicial error and prejudice capable of

effecting the outcome of the case. Under the facts stated herein, the district court’s

dismissal of Jefferson’s action without leave to amend is an abuse of discretion

Page 3


because amendment would not be futile according to Serra v. Lappin, 600 F.3d

1191, 1200 (9th Cir 2010). The facts stated herein shows that the claims averred in

the complaint during the ERISA non-applicability window are not preempted by

ERISA. [Emphasis]

PRAYER FOR RELIEF

For the reasons set forth above, Plaintiff respectfully request that the Court grant

this petition for rehearing by panel.

Dated: October 17, 2016 Signature: s/ Gary B. Jefferson

In Pro Se

Page 4


Form 11. Certificate of Compliance Pursuant to Circuit Rules 35-4 and 40-1

Form Must be Signed by Attorney or Unrepresented Litigant and Attached to the Back of Each Copy of the Petition or Answer

(signature block below)

I certify that pursuant to Circuit Rule 35-4 or 40-1, the attached petition for panel rehearing/petition for rehearing enbanc/answer is: (check applicable option)

____ Proportionately spaced, has a typeface of 14 points or more and contains __________ words (petitionsand answers must not exceed 4,200 words).

or

____ Monospaced, has 10.5 or fewer characters per inch and contains _______words or ________ lines of text (petitions and answers must not exceed4,200 words or 390 lines of text).

or

____ In compliance with Fed. R. App. 32(c) and does not exceed 15 pages.

___________________________Signature of Attorney orUnrepresented Litigant

(New Form 7/1/2000)

X 794

s/ Gary B. Jefferson


NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GARY B. JEFFERSON,

Plaintiff-Appellant,

v.

TIME WARNER CABLE, INC.; TIME

WARNER CABLE, LLC,

Defendants-Appellees.

No. 14-56297

D.C. No. 2:14-cv-01345-GW-CW

MEMORANDUM*

Appeal from the United States District Court

for the Central District of California

George H. Wu, District Judge, Presiding

Submitted September 27, 2016**

Before: TASHIMA, SILVERMAN, and M. SMITH, Circuit Judges.

Gary B. Jefferson appeals pro se from the district court’s judgment

dismissing his employment action alleging claims under Title VII and California

law. We have jurisdiction under 28 U.S.C. § 1291. We review de novo the district

* This disposition is not appropriate for publication and is not precedent

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).

FILED

OCT 4 2016

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

Case: 14-56297, 10/04/2016, ID: 10147774, DktEntry: 8-1, Page 1 of 2 Case: 14-56297, 10/17/2016, ID: 10162899, DktEntry: 9-3, Page 1 of 2(8 of 12)

2 14-56297

court’s dismissal on the basis of res judicata. Stewart v. U.S. Bancorp, 297 F.3d

953, 956 (9th Cir. 2002). We affirm.

The district court properly dismissed Jefferson’s action as precluded by the

doctrine of res judicata because Jefferson’s claims could have been raised in his

prior action, which resulted in a final judgment. See id. (stating requirements of

res judicata under federal law). Contrary to Jefferson’s contention, the continuing

tort doctrine does not apply to this action.

The district court did not abuse its discretion in dismissing Jefferson’s action

without leave to amend because amendment would be futile. See Serra v. Lappin,

600 F.3d 1191, 1195, 1200 (9th Cir. 2010) (setting forth standard of review and

factors for a district court to consider in determining whether to grant leave to

amend).

AFFIRMED.

Case: 14-56297, 10/04/2016, ID: 10147774, DktEntry: 8-1, Page 2 of 2 Case: 14-56297, 10/17/2016, ID: 10162899, DktEntry: 9-3, Page 2 of 2(9 of 12)

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