FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KERRY WALLS, 

Plaintiff-Appellant, No. 10-15967

v. D.C. No.  4:08-cv-00224-PJH CENTRAL CONTRA COSTA TRANSIT

AUTHORITY, OPINION

Defendant-Appellee. 

Appeal from the United States District Court

for the Northern District of California

Phyllis J. Hamilton, District Judge, Presiding

Argued and Submitted

May 13, 2011—San Francisco, California

Filed August 3, 2011

Before: Betty B. Fletcher and Sidney R. Thomas,

Circuit Judges, and Lee H. Rosenthal, District Judge.*

Per Curiam Opinion

*The Honorable Lee H. Rosenthal, District Judge for the U.S. District

Court for Southern Texas, Houston, sitting by designation. 

10107
COUNSEL

William James Flynn, Benjamin Kerl Lunch, Neyhart, Anderson, Flynn & Grosboll, San Francisco, California, for the

plaintiff-appellant. 

Mark Gabel, Patrick McPike Glenn, Molly Anne Lee, Hanson

Bridgett LLP, San Francisco, California, for the defendantappellee. 

10110 WALLS v. CENTRAL CONTRA COSTA TRANSIT AUTH.
OPINION

PER CURIAM:

Plaintiff-Appellant Kerry Walls (“Walls”) appeals the district court’s grant of summary judgment in favor of

Defendant-Appellee Central Contra Costa Transit Authority

(“CCCTA”). Walls is a former bus driver for CCCTA. After

being terminated on January 27, 2006, Walls was reinstated

on March 2, 2006 pursuant to an agreement executed over the

course of a grievance process between Walls, his union representative, and CCCTA (“Last Chance Agreement” or “Agreement”). On March 3, 2006, Walls incurred an unexcused

absence that violated the attendance requirements of the

Agreement. As a result, CCCTA again terminated Walls on

March 6, 2006. 

After grieving his termination, Walls brought this suit,

claiming that his March 6 discharge violated the Family Medical Leave Act (“FMLA”) and his due process right to a pretermination hearing under the United States and California

Constitutions. The parties filed cross-motions for summary

judgment. The district court granted summary judgment in

favor of CCCTA on both claims, reasoning that Walls was not

an employee eligible for FMLA benefits when he requested

leave, and that he had waived his due process rights. Walls

timely appealed. Additional facts are noted where relevant. 

We have jurisdiction under 28 U.S.C. § 1291, and we

affirm in part and reverse and remand in part.

I.

A district court’s grant of summary judgment is reviewed

de novo. Davis v. City of Las Vegas, 478 F.3d 1048, 1053 (9th

Cir. 2007) (citing Buono v. Norton, 371 F.3d 543, 545 (9th

Cir. 2004)). Federal Rule of Civil Procedure 56(a) provides

that a movant is entitled to summary judgment where “there

WALLS v. CENTRAL CONTRA COSTA TRANSIT AUTH. 10111
is no genuine dispute as to any material fact and the movant

is entitled to a judgment as a matter of law.” In evaluating the

evidence to determine whether there is a genuine issue of fact,

we draw all inferences supported by the evidence in favor of

the non-moving party. Guidroz-Brault v. Mo. Pac. R.R. Co.,

254 F.3d 825, 829 (9th Cir. 2001).

II.

A.

[1] The FMLA entitles an “eligible employee” to twelve

workweeks of leave for certain family and health-related situations. 29 U.S.C. § 2612. “The term ‘eligible employee’

means an employee who has been employed (i) for at least 12

months by the employer with respect to whom leave is

requested . . . .” Sullivan v. Dollar Tree Stores, Inc., 623 F.3d

770, 780 (9th Cir. 2010) (citing 29 U.S.C. § 2611(2)(A))

(internal quotation marks omitted). Therefore, FMLA rights

and benefits are contingent upon the existence of an employment relationship. See Smith v. BellSouth Telecomm., Inc.,

273 F.3d 1303, 1311 (11th Cir. 2001) (the right to FMLA

leave “obviously cannot be exercised after the termination of

an employment relationship”).

[2] In order to establish an FMLA violation, the employee

must demonstrate that the employer received sufficient notice

of an employee’s intent to take FMLA leave. See Sanders v.

City of Newport, ___ F.3d ___, 2011 WL 905998, at *5 (9th

Cir. Mar. 17, 2011). An employer that refuses to reinstate an

employee who takes FMLA-protected leave unlawfully interferes with the employee’s FMLA rights. See id. at *4-5.

Walls argues that his termination on March 6, based upon

his March 3 absence, interfered with his FMLA rights because

he was entitled to protected leave on the basis of a verbal

request he made during a March 1, 2006 meeting with his

union representative and CCCTA. Although the parties pro10112 WALLS v. CENTRAL CONTRA COSTA TRANSIT AUTH.
vide different accounts of Walls’s communication with

CCCTA at the March 1 meeting, they agree for purposes of

summary judgment, that, at this meeting, Walls verbally

requested to be absent from work until April 10. They also

agree that Walls was not reinstated to his position until March

2, when he signed and executed the Last Chance Agreement.

Therefore, he had not yet been reinstated to employment

when he made his request for leave. 

[3] Walls argues, however, that the Last Chance Agreement retroactively changed his status and rendered him an

FMLA eligible employee on March 1. While Walls makes a

novel legal argument, the facts of this case, and the terms of

the Last Chance Agreement, do not support his position. As

an undisputed matter of fact, Walls was no longer employed

at CCCTA on March 1, the day he requested medical leave.

The Last Chance Agreement says nothing of, and does nothing to change, Walls’s status on this date. The Agreement

states only that the period from January 20, 2006 to January

27, 2006 would be changed to an unpaid suspension; it does

not expressly revoke the fact of Walls’s termination on January 27. That Walls was reinstated to his previous level of

seniority also does not change the fact that he was not

employed at CCCTA on March 1, the day before his reinstatement. Therefore, we have no basis on which to conclude that

the Agreement altered Walls’s status on March 1 for purposes

of the FMLA. 

[4] Accordingly, even if a reinstatement agreement could,

as a legal matter, retroactively change a former employee’s

status from terminated to “eligible employee” for purposes of

the FMLA,1 the terms of this Last Chance Agreement clearly

do not have such effect. We agree with the district court that

Walls was not an employee of CCCTA when he made his

1This novel question may have presented itself if, for example, the

Agreement had indicated that the entire period from Walls’s January termination to his March reinstatement was changed to an unpaid suspension.

WALLS v. CENTRAL CONTRA COSTA TRANSIT AUTH. 10113
request for leave and, therefore, cannot invoke FMLA protection on the basis of this request. 

Walls additionally argues that, even if he was not an

employee of CCCTA on March 1, CCCTA had actual knowledge during the period of Walls’s employment from March 2

to March 6 of his need for FMLA leave, thereby excusing the

requirement that he request such leave. Putting aside any legal

deficiencies in this argument, we must reject its factual premise. The record reveals that, by making the informed decision

to sign the Last Chance Agreement, Walls signaled to

CCCTA that he was ready to start work under the terms of the

Agreement, thereby retracting his request for leave. In addition, Walls attended a refresher training course on March 2,

as he was required to do under the terms of the Agreement.

This further indicated that he was in fact able to return to

work. Upon Walls’s reinstatement, therefore, CCCTA had no

notice that Walls needed or intended to take medical leave. 

[5] Because Walls was not an employee of CCCTA when

he made his request for leave, we affirm the district court’s

grant of judgment for CCCTA on Walls’s FMLA claim.

B.

Walls also seeks relief under 42 U.S.C. § 1983 and the California Constitution, arguing that CCCTA denied him his

right to due process by failing to give him a hearing before

terminating him on March 6. Due process analysis involves a

two-step process. We must determine first whether Walls had

a protected property interest in his continued employment,

and, second, whether Walls received all the process that was

due. Clements v. Airport Auth. of Washoe Cnty, 69 F.3d 321,

331 (9th Cir. 1995).

1.

[6] Public employees who may be dismissed only for cause

possess a property interest in their continued employment.

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Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538-39

(1985). CCCTA argues that the Last Chance Agreement

effectively rendered Walls an at-will employee who was no

longer entitled to due process protections. 

[7] In California, at-will employees are those who can be

fired with or without cause, subject only to limits imposed by

public policy. Foley v. Interactive Data Corp., 47 Cal. 3d 654,

665 (Cal. 1988). Here, the Last Chance Agreement specifies

that certain events must in fact occur in order for Walls to be

terminated. Nowhere does the Agreement expressly state that

Walls was relegated to at-will employment status, nor does it

allow CCCTA to terminate him without any cause. While the

Last Chance Agreement specifies and modifies what constitutes “just cause” for purposes of Walls’s termination, it does

not otherwise alter the employment terms of Walls’s collective bargaining agreement with CCCTA. Accordingly, there

is no basis on which to conclude that he had become an atwill employee. Under the Agreement, Walls remained a public employee who could be fired only for cause, that is, an

employee with a property interest in his continued employment. See Loudermill, 470 U.S. at 538-39. 

[8] Having established that Walls had a protected property

interest, we examine the process to which he was entitled.

Due process requires that any deprivation of life, liberty, or

property “be preceded by notice and opportunity for hearing

appropriate to the nature of the case.” Mullane v. Central

Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950). As the

Loudermill Court explained, in cases of discharge from

employment, “the only meaningful opportunity to invoke the

discretion of the decisionmaker is likely to be before the termination takes effect.” Loudermill, 470 U.S. at 543. Therefore, a public employee with a property interest in his

continued employment must be provided with “oral or written

notice of the charges against him, an explanation of the

employer’s evidence, and an opportunity to present his side of

the story.” Id. at 546. While the pre-termination hearing need

WALLS v. CENTRAL CONTRA COSTA TRANSIT AUTH. 10115
not be elaborate, the root of this requirement is that an individual have the opportunity to be heard before he is deprived

of his property interest. Id. at 542.

[9] California law similarly recognizes a public employee’s right to a pre-termination hearing. In Skelly v. State Pers.

Bd., 15 Cal. 3d 194, 215 (Cal. 1975), the Supreme Court of

California held that “due process does mandate that the

employee be accorded certain procedural rights before” being

removed. At a minimum, these pre-removal safeguards must

include “notice of the proposed action, the reasons therefor,

a copy of the charges and materials upon which the action is

based, and the right to respond, either orally or in writing, to

the authority initially imposing discipline.” Id.; see also Jones

v. Omnitrans, 125 Cal. App. 4th 273, 279-80 (Cal. Ct. App.

2004). Skelly expressly notes that post-removal safeguards

alone do not satisfy due process requirements because they

“do nothing to protect the employee who is wrongfully disciplined against the temporary deprivation of property to which

he is subjected pending a hearing.” 15 Cal. 3d at 215. 

[10] It is undisputed that Walls did not receive a hearing

before his termination on March 6. Notably, and despite the

language in the Last Chance Agreement, CCCTA did allow

the grievance process to go forward after Walls’s March 6 termination. In light of Loudermill’s and Skelly’s emphasis on

the importance of providing the employee with an opportunity

to respond before he is terminated, however, these posttermination procedures alone cannot provide due process. See

Clements, 69 F.3d at 332 (“In the context of process due a terminated public employee, a full post-deprivation hearing does

not substitute for the required pre-termination hearing.”).

Therefore, this post-termination process, absent any pretermination procedure, is insufficient to fulfill CCCTA’s

responsibility under the United States and California Constitutions.

10116 WALLS v. CENTRAL CONTRA COSTA TRANSIT AUTH.
2.

[11] The dispositive issue, then, is whether, in signing the

Last Chance Agreement, Walls waived his right to a pretermination hearing. A public employee may waive his right

to due process. Ostlund v. Bobb, 825 F.2d 1371, 1373-74 (9th

Cir. 1987); Flippin v. L.A. City Bd. of Civil Service Comm’rs,

148 Cal. App. 4th 272, 281 (Cal. Ct. App. 2007). Nonetheless,

federal courts “indulge every reasonable presumption against

waiver of fundamental constitutional rights” and “do not presume acquiescence in the loss of fundamental rights.” Johnson v. Zerbst, 304 U.S. 458, 464 (1938) (internal citations and

quotation marks omitted). Such a waiver should not be

implied and should not be lightly found. See Ostlund, 825

F.2d at 1373. “Waiver of a constitutional right must be knowing and voluntary.” Id. The presumption against waiver of

constitutional rights applies equally in the criminal and civil

contexts. Gete v. I.N.S., 121 F.3d 1285, 1293 (9th Cir. 1997).

As Walls points out, the Last Chance Agreement contains

no express waiver of a pre-termination hearing or of the right

to due process pursuant to a termination decision. The Agreement does state that “[y]ou and your Union Representative

may not grieve or arbitrate this matter if you fail to comply

with these conditions.” Since grievance and arbitration are

post-termination processes, however, this clause does not conclusively waive Walls’s rights to the pre-termination process

of notice and the opportunity to respond. 

[12] The district court held that Walls had waived his right

to a post-termination hearing because the Last Chance Agreement concludes that “non-compliance with the stipulations [of

the Last Chance Agreement] will result in your immediate

and final termination.” This text, however, is also insufficient

to overcome the presumption against waiver of constitutional

rights. First, it is not clear that the term “immediate,” used in

the context of an employment agreement, necessarily signals

that the termination will take effect without a hearing or proWALLS v. CENTRAL CONTRA COSTA TRANSIT AUTH. 10117
cess of any kind. We have found no federal or California precedent suggesting that the use of the word “immediate” alone

serves to waive a public employee’s due process rights. Second, and more important, it is certainly not clear that Walls

knew and understood when he signed the Agreement that he

was waiving his right to a pre-termination hearing. The record

reflects that such a hearing was provided to him before his

initial discharge on January 27, and the Agreement does not

clearly provide that Walls would not be afforded the same

procedure if terminated for non-compliance with the Last

Chance Agreement’s terms. Indeed, because the Agreement

requires him to waive the post-termination grievance process,

it is logical for Walls to have assumed that, absent an analogous waiver, he would be afforded pre-termination safeguards. Applying the presumption against the waiver of

constitutional rights, we must conclude that Walls did not

knowingly waive his right to due process protections. Because

he received no pre-termination hearing, Walls was denied due

process under the United States and California Constitutions.

III.

[13] Consistent with the analysis above, we affirm the district court’s grant of summary judgment for CCCTA on

Walls’s FMLA claim. We reverse the district court’s grant of

summary judgment for CCCTA on Walls’s due process

claims, and remand with instructions to grant judgment for

Walls on these claims. We leave it to the district court to

determine what remedy, if any, is appropriate.

AFFIRMED IN PART, REVERSED AND

REMANDED IN PART. 

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