foregoing absences because Ms. Espindola’s leave requests did not comport with
company policy. Had Apple King’s policy provided Ms. Espindola an avenue for
claiming unforeseeable FMLA/WFLA leave, this defense would almost certainly prevail.
29 C.F.R. §§ 825.302(d), .303(c). But Apple King’s attendance policy does not account
for the FMLA/WFLA. The policy provides no explanation of how an employee would be
expected to claim unforeseeable protected leave not resulting in hospitalization. Because
Apple King’s policy was not compliant with the FMLA/WFLA, the policy provides no
defense to Ms. Espindola’s retaliation claim.
Ms. Espindola has made a sufficient claim for retaliation under 29 C.F.R.
§ 825.220(c). As a consequence, Apple King is not entitled to summary judgment.
The trial court’s ruling to the contrary is reversed.
ATTORNEY FEES
Ms. Espindola requests attorney fees and costs pursuant to RAP 18.1, 29 U.S.C.
§ 2617(a)(3), 29 C.F.R. § 825.400(c), and RCW 49.48.030. This request is premature.
Because Ms. Espindola has not yet succeeded on her claim against Apple King, we are
not in a position to award attorney fees. If, after remand, Ms. Espindola prevails on her
FMLA/WFLA claim, she will qualify as a prevailing party and may be awarded attorney
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No. 35262-5-IH
Espindola v. Apple King
fees, including fees generated during this appeal, under 29 U.S.C. § 2617(a)(3), 29 C.F.R.
§ 825.400(c), and RCW 49.48.030.
CONCLUSION
The order on summary judgment is reversed. This matter is remanded for trial or
further proceedings consistent with the terms of this opinion.
Q.
Pennell, A.CJ.
WE CONCUR:
Fearing, J.
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