FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TOMAS PEREZ, 

Plaintiff-Appellant, 

 v. 

BARRICK GOLDSTRIKE MINES, 

INC., 

Defendant-Appellee.

No. 23-15043

D.C. No. 

3:19-cv-00067-

RCJ-CSD

OPINION

Appeal from the United States District Court

for the District of Nevada

Robert C. Jones, District Judge, Presiding

Argued and Submitted May 14, 2024

San Francisco, California

Filed June 28, 2024

Before: Kenneth K. Lee and Daniel A. Bress, Circuit 

Judges, and John R. Tunheim,

* District Judge.

Opinion by Judge Tunheim

* The Honorable John R. Tunheim, United States District Judge for the 

District of Minnesota, sitting by designation.
2 PEREZ V. BARRICK GOLDSTRIKE MINES, INC.

SUMMARY**

Family and Medical Leave Act

The panel affirmed the district court’s judgment after a 

jury trial in favor of the defendant in an action under the 

Family and Medical Leave Act. 

Tomas Perez claimed that his former employer, Barrick 

Goldstrike Mines, Inc., wrongfully interfered with his rights 

under the Act when it terminated his employment as an 

underground haul truck driver. The jury found that Perez 

failed to show by a preponderance of the evidence either that 

he suffered a serious health condition preventing him from 

performing his job or that Barrick terminated his 

employment because he sought protected leave. 

Agreeing with other circuits, the panel held that the 

Family and Medical Leave Act does not require an employer 

to present contrary medical evidence before contesting a 

doctor’s certification of a serious health condition. The 

district court therefore did not err by failing to instruct the 

jury that only contrary medical evidence could defeat 

Perez’s doctor’s certification. The jury properly considered 

the non-medical evidence that Barrick offered at trial in 

support of its argument that Perez did not have a serious 

health condition within the meaning of the Act. 

The panel addressed additional issues in an 

accompanying memorandum disposition.

** This summary constitutes no part of the opinion of the court. It has 

been prepared by court staff for the convenience of the reader.
PEREZ V. BARRICK GOLDSTRIKE MINES, INC. 3

COUNSEL

James P. Kemp (argued), Kemp & Kemp, Las Vegas, 

Nevada; James M. Jimmerson and James J. Jimmerson, The 

Jimmerson Law Firm PC, Las Vegas, Nevada; for PlaintiffAppellant.

Jack S. Sholkoff (argued), Catherine L. Brackett, Ogletree 

Deakins Nash Smoak & Stewart PC, Los Angeles, 

California; David C. Castleberry and Amanda L. Fuller, 

Ogletree Deakins Nash Smoak & Stewart PC, Salt Lake 

City, Utah; Trevor J. Lee, Hoggan Lee Hutchinson, Park 

City, Utah; for Defendant-Appellee.

OPINION

TUNHEIM, District Judge:

Plaintiff-Appellant Tomas Perez brought this action 

against his former employer, Barrick Goldstrike Mines, Inc., 

challenging his termination as an underground haul truck 

driver after he allegedly faked a work injury to take leave 

under the Family and Medical Leave Act (FMLA). Perez 

asserts a claim for wrongful interference with his rights 

under the FMLA and retaliatory discharge in violation of 

Nevada public policy. 

A jury returned a verdict for Barrick on both claims, 

finding that Perez had not shown by a preponderance of the 

evidence that he suffered a serious health condition 

preventing him from performing his job under the FMLA or 

that Barrick terminated his employment because he filed a 

worker’s compensation claim. Perez contends that the 
4 PEREZ V. BARRICK GOLDSTRIKE MINES, INC.

district court erred by failing to instruct the jury that only 

contrary medical evidence can defeat a doctor’s certification 

of a serious health condition under the FMLA. We have 

jurisdiction pursuant to 28 U.S.C. § 1291. Because the 

FMLA does not require an employer to present contrary 

medical evidence before contesting a doctor’s FMLA 

certification, we affirm.

1

I. BACKGROUND

A. Perez’s Reported Accident and Resulting Injury

Perez claims he was injured during one of his work shifts 

when his haul truck collided with the wall of a mine and his 

chest was thrust into the armrest of the driver’s seat. 

Although Barrick policy requires employees to report “all 

injuries and incidents immediately,” Perez did not report the 

collision until the end of his shift, hours later. 

An on-site emergency medical technician who examined 

Perez did not observe any outward signs of injury. Similarly, 

Dr. Black, who treated Perez, found no outward signs of 

injury, no abnormalities in Perez’s X-rays, and that Perez’s 

heart and lungs were functioning normally. Nevertheless, 

based on Perez’s explanation of the accident and his 

resulting pain, Dr. Black diagnosed Perez with a chest wall 

contusion and muscle spasms, prescribed him a muscle 

relaxant, and certified that he was to remain off work for five 

days, pending a follow-up appointment. Because Perez 

claimed that he was still suffering severe pain from certain 

movements at the follow-up, Dr. Black certified Perez to 

remain off-work for another eleven days. Perez was 

1 We address Perez’s other arguments on appeal in an accompanying 

memorandum disposition.
PEREZ V. BARRICK GOLDSTRIKE MINES, INC. 5

approved to return to work eighteen days after the alleged 

accident, with no restrictions.

B. Barrick’s Investigation and Perez’s Termination

Barrick began investigating Perez’s alleged accident 

after Perez disclosed it, but Barrick found no physical

evidence that Perez’s truck had in fact collided with the side 

of the mine. And an employee later emailed management 

that one of Perez’s friends told the employee that Perez “is 

faking a work related injury in order to take time off to work 

on personal business (fixing rental properties).” 

Barrick hired a private investigator to follow Perez and 

confirm whether he was fraudulently taking FMLA leave. 

Over the course of three days, the investigator captured 

video evidence of Perez engaging in various activities 

without visible signs of difficulty or discomfort, including 

driving through town, gambling at a casino, performing 

repair work at his rental property, repeatedly lifting and 

holding both arms over his head, and carrying and using a 

power drill and other tools and equipment. 

When Perez returned from leave, Barrick confronted 

Perez with the employee’s report and investigator’s findings. 

Perez responded that he had “nothing to say.” Barrick then 

fired Perez after concluding that he had faked his injury and

violated company policy. 

C. Procedural History

Perez filed this action in the United States District Court 

for the District of Nevada. Perez claimed Barrick terminated 

his employment and denied reinstatement in violation of the 

FMLA and Nevada public policy. Barrick denied any 

wrongdoing and argued that Perez was terminated for failing 
6 PEREZ V. BARRICK GOLDSTRIKE MINES, INC.

to properly report his injury and lying about the existence 

and/or extent of his injury or accident. 

The case proceeded to a jury trial. The jury returned a 

verdict in favor of Barrick, finding that Perez had not shown 

by a preponderance of the evidence that he suffered a serious 

health condition that prevented him from performing his job

or that he was terminated for seeking protected leave. 

II. DISCUSSION

A. Standard of Review

We review jury instructions de novo for prejudicial error. 

Swinton v. Potomac Corp., 270 F.3d 794, 802 (9th Cir. 

2001). “[P]rejudicial error results when, ‘looking to the 

instructions as a whole, the substance of the applicable law 

was [not] fairly and correctly covered.’” Id. (quoting In re 

Asbestos Cases, 847 F.2d 523, 524 (9th Cir. 1988)). 

Reversal is required unless “the error is more probably than 

not harmless.” Clem v. Lomeli, 566 F.3d 1177, 1182 (9th 

Cir. 2009).

B. FMLA Claim

To make out a prima facie case of FMLA interference, 

an employee must first “establish that . . . he was eligible for 

the FMLA’s protections.” Sanders v. City of Newport, 657 

F.3d 772, 778 (9th Cir. 2011) (quotation omitted). An 

employee is entitled to FMLA leave if he has “a serious 

health condition that makes the employee unable to perform 

the functions of the position.” 29 U.S.C. § 2612(a)(1)(D). 

A “serious health condition” is an “injury” that involves 

“continuing treatment” by a health care provider—or a 

period of incapacity of more than three consecutive calendar 

days. 29 U.S.C. § 2611(11); 29 C.F.R. § 825.115(a). 
PEREZ V. BARRICK GOLDSTRIKE MINES, INC. 7

Under the FMLA, an employer may “require that a 

request for leave” due to a serious health condition “be 

supported by a certification” from a health care provider. 29 

U.S.C. § 2613(a). “In any case in which the employer has 

reason to doubt the validity of the certification” under 

§ 2613(a), the employer “may require” that the employee, at 

the employer’s expense, obtain the opinion of a second or 

third health care provider or seek recertifications on a 

reasonable basis. 29 U.S.C. § 2613(c)–(e).

Here, after Dr. Black certified that Perez should take 

time off work, Barrick never requested a recertification or 

obtained a second medical opinion. Perez argues that the 

district court should have instructed the jury that the only 

proper way for Barrick to challenge Dr. Black’s certification 

would have been to obtain recertifications or subsequent 

opinions from additional medical experts. 

Whether an employer must present contrary medical 

evidence to defeat a doctor’s certification in an FMLA 

interference claim is a matter of first impression in this 

circuit. To resolve it, we begin with the plain language of 

the statute. Coronado-Durazo v. I.N.S., 123 F.3d 1322, 1324 

(9th Cir. 1997). Again, the FMLA states that an employer 

“may require” additional medical opinions when it “has 

reason to doubt the validity of the [original] certification.” 

29 U.S.C. § 2613(c)(1). It further provides that “[t]he 

employer may require that the eligible employee obtain 

subsequent recertifications on a reasonable basis.” Id.

§ 2613(e); see also 29 C.F.R. § 825.308(c)(3) (providing 

that an employer “may request recertification” of a health 

care provider’s original certification for leave if the 

employer “receives information that casts doubt upon the 

employee’s stated reason for the absence or the continuing 

validity of the certification”).
8 PEREZ V. BARRICK GOLDSTRIKE MINES, INC.

The word “may” is permissive. See May, Black’s Law 

Dictionary (11th ed. 2019). The plain language of the 

FMLA therefore merely provides an employer with the 

option to require a second or third opinion and seek 

recertification. It does not require an employer to provide 

contrary medical evidence if it doubts the validity of the 

original certification, let alone mandate that an employer 

must do so in order to challenge the sufficiency of that 

original certification in court.

In support of his contrary reading of the statute, Perez 

points to Sims v. Alameda–Contra Costa Transit Dist., 2 F. 

Supp. 2d 1253, 1263 (N.D. Cal. 1998), in which a district 

court from this circuit concluded that an employer who 

requires a first certification from a physician is bound by 

those findings unless it seeks a second opinion. But all

circuit courts to confront the issue have rejected Sims’s 

conclusion. 

For example, the Eighth Circuit has held that “[t]he 

language of § 2613 ... is merely permissive,” such that “[w]e 

do not read § 2613(c)(1) as requiring an employer to obtain 

a second opinion or else waive any future opportunity to 

contest the validity of the certification.” Stekloff v. St. John’s 

Mercy Health Sys., 218 F.3d 858, 860 (8th Cir. 2000). 

Similarly, the Fourth Circuit has held that “the plain 

language of the [FMLA] does not suggest that an employer 

must pursue these procedures or be forever foreclosed from 

challenging whether an employee suffered from a serious 

health condition; and nothing in the legislative history of the 

FMLA explicitly supports that interpretation.” Rhoads v. 

F.D.I.C., 257 F.3d 373, 386 (4th Cir. 2001). The Second and 

Sixth Circuits have held the same. See Pollard v. New York 

Methodist Hosp., 861 F.3d 374, 381–82 (2d Cir. 2017); 
PEREZ V. BARRICK GOLDSTRIKE MINES, INC. 9

Novak v. MetroHealth Med. Ctr., 503 F.3d 572, 579–80 (6th 

Cir. 2007).2

We are persuaded by the reasoning of our sister circuits

and join them in holding that § 2613 does not require an 

employer to seek recertifications or a second or third medical

opinion before contesting the validity of an FMLA 

certification in subsequent litigation. There was thus no 

prejudicial error in the district court’s jury instructions. And 

the jury was thus permitted to consider the non-medical 

evidence that Barrick offered at trial in support of its 

argument that Perez did not have a serious health condition 

within the meaning of the FMLA.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the district 

court’s judgment in favor of Barrick.

2 See also Lonicki v. Sutter Health Cent., 180 P.3d 321, 328–29 (Cal. 

2008) (rejecting reasoning of Sims).