appellant's petition for panel rehearing
TRANSCRIPT
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)
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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
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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]
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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
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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
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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
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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
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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
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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.
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