              Case: 12-15550     Date Filed: 12/19/2013   Page: 1 of 8


                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 12-15550
                             Non-Argument Calendar
                           ________________________

                      D.C. Docket No. 2:09-cv-00030-AKK

CRYSTAL P. GREEN,

                                                                Plaintiff-Appellant,

                                      versus

US STEEL CORPORATION,

                                                               Defendant-Appellee.

                           ________________________

                   Appeal from the United States District Court
                      for the Northern District of Alabama
                          ________________________

                               (December 19, 2013)

Before MARCUS, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:

      Crystal Green, a former employee of U.S. Steel Corp. (“U.S. Steel”), appeals

the jury verdict in favor of U.S. Steel on her claims of interference and retaliation

under the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2615(a)(1).
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Green’s claims relate to a bout of influenza that she had in February 2008, which

caused her to miss several day of work. Before that time, Green had entered into a

“Last Chance Agreement” with U.S. Steel, due to prior instances of absenteeism.

Per the Last Chance Agreement, Green was required to provide a doctor’s note for

any absences immediately upon her return to work. U.S. Steel terminated Green

following her February 2008 absences because she did not obtain a doctor’s note

for several of the days that she was absent until after her return to work.

      In instructing the jury, the district court used our pattern jury instructions

and a verdict form that asked the jury to answer questions as to each element of

Green’s respective claims. As to each claim, the jury determined that Green had

not proved the first element -- that she suffered from a “serious health condition.”

The verdict form instructed the jury that, if it determined that Green did not suffer

from a “serious health condition,” it need not deliberate further. On appeal, Green

argues that: (1) the district court abused its discretion in using the pattern jury

instructions and declining to issue several of her proposed instructions; and (2) the

district court abused its discretion in admitting evidence of her prior history of

absenteeism. After careful review, we affirm.

      We apply a deferential standard of review to a district court’s jury

instructions. Eskra v. Provident Life & Accident Ins. Co., 125 F.3d 1406, 1415

(11th Cir. 1997). “If the instructions accurately reflect the law, the trial judge is


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given wide discretion as to the style and wording employed in the instruction.” Id.

(quotations omitted). We review de novo whether the instructions accurately

reflect the law. Id. “When the instructions, taken together, properly express the

law applicable to the case, there is no error even though an isolated clause may be

inaccurate, ambiguous, incomplete or otherwise subject to criticism.” Morgan v.

Family Dollar Stores, Inc., 551 F.3d 1233, 1283 (11th Cir. 2008) (quotation

omitted). We also apply harmless error review to jury instructions. See Spakes v.

Broward Cnty. Sheriff’s Office, 631 F.3d 1307, 1310 (11th Cir. 2011). A district

court has broad discretion in determining the admissibility of evidence, and we will

not reverse an evidentiary ruling absent a clear showing of abuse of discretion.

Equity Lifestyle Props., Inc. v. Fla. Mowing & Landscaping Serv., Inc., 556 F.3d

1232, 1243 (11th Cir. 2009). We will not overturn an evidentiary ruling unless the

moving party demonstrates that the error “probably had a substantial influence on

the jury’s verdict.” Burchfield v. CSX Transp., Inc., 636 F.3d 1330, 1333 (11th

Cir. 2011) (quotations omitted).

      First, we are unpersuaded by Green’s claim that the district court abused its

discretion in using the pattern jury instructions and declining to issue several of her

proposed instructions. Under the FMLA, an eligible employee may take up to 12

workweeks of leave during any 12-month period because of a “serious health

condition that makes the employee unable to perform the functions of [her]


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position.” 29 U.S.C. § 2612(a)(1)(D). It is unlawful for an employer to interfere

with the exercise of an employee’s rights under the FMLA. Id. § 2615(a)(1). The

FMLA defines “serious health condition” as “an illness, injury, impairment, or

physical or mental condition . . . involv[ing] . . . (A) inpatient care in a hospital,

hospice, or residential medical care facility; or (B) continuing treatment by a health

care provider.” Id. § 2611(11).

      The regulations define “serious health condition” as “an illness, injury,

impairment or physical or mental condition that involves inpatient care . . . or

continuing treatment by a health care provider.” 29 C.F.R. § 825.113(a). A

“serious health condition involving continuing treatment” includes, inter alia, a

period of incapacity of more than three days and any subsequent treatment or

period of incapacity that involves “[t]reatment two or more times, within 30 days

of the first day of incapacity, unless extenuating circumstances exist, by a health

care provider.” Id. § 825.115(a)(1). “[I]ncapacity means inability to work, attend

school or perform other regular daily activities due to the serious health condition,

treatment therefore, or recovery therefrom.” Id. § 825.113(b).

      An employee taking FMLA leave must provide at least 30 days’ notice

before doing so, or, if 30 days’ notice is not possible, as soon as practicable. Id. §

825.302(a). The employee must give “at least verbal notice sufficient to make the

employer aware that [she] needs FMLA qualifying leave, and the anticipated


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timing and duration of the leave.” Id. § 825.302(c). “When an employee seeks

leave for the first time for a FMLA-qualifying reason, the employee need not

expressly assert rights under the FMLA or even mention the FMLA.” Id.

      “To prove FMLA interference, an employee must demonstrate that [she] was

denied a benefit to which [she] was entitled under the FMLA,” but she need not

show that the employer intended to deny her the right. Martin v. Brevard Cnty.

Pub. Sch., 543 F.3d 1261, 1266-67 (11th Cir. 2008). “To prove FMLA retaliation,

an employee must show that [her] employer intentionally discriminated against

[her] for exercising an FMLA right.” Id.

      In this case, the record reveals that the district court’s jury instructions

accurately reflected the law.     Among other things, the district court’s jury

instructions correctly listed the appropriate elements of Green’s FMLA claims;

tracked the statutory definition of “serious health condition”; and included an

instruction concerning “notice” that accurately reflected 29 C.F.R. § 825.302. See

29 U.S.C. §§ 2611(11), 2612(a)(1)(D), 2615(a)(1); Martin, 543 F.3d at 1266-67.

Green asserts, however, that the district court’s instructions were “incomplete” or

that her proposed instructions were better -- but we find no abuse of discretion.

      For starters, Green’s argument -- that the district court’s instruction

concerning “serious health condition” was incomplete -- is unavailing.              The

instruction as given left room for the jury to determine that Green’s influenza was


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a “serious medical condition” because the doctor’s recommendation that she not

return to work for more than three days might indicate that a complication had

arisen. But even if Green’s definition of “serious health condition” was more

complete given the circumstances of her case, the district court did not abuse its

considerable discretion in declining to use it in favor of another instruction that

accurately reflected the law.

      Further, as the record reflects, the jury found per its verdict form that Green

did not qualify for FMLA leave because she did not have a “serious health

condition,” and thus did not address the questions concerning notice and the other

elements of Green’s claims.        Because the jury did not reach these other

instructions, any error in those instructions was harmless. See Spakes, 631 F.3d at

1310 (concluding that district court’s failure to give jury instructions on an

employer’s defense in an FMLA case was harmless where the jury specifically

rejected that defense in a special verdict form).

      We are also unconvinced by Green’s argument that the district court abused

its discretion in admitting evidence of her prior history of absenteeism, which she

contends was “bad character evidence” that ran afoul of Fed.R.Evid. 404(b)(1).

Relevant evidence is admissible unless prohibited by the U.S. Constitution, a

federal statute, the Rules of Evidence, or other rules that the Supreme Court

promulgates. Fed.R.Evid. 402. Evidence is relevant if (1) it tends to make a fact


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more or less probable and (2) the fact is of consequence in determining the case.

Id. 401(a)-(b). The district court may exclude relevant evidence, however, if the

danger of unfair prejudice, confusing the issues, or misleading the jury

substantially outweighs its probative value. Id. 403. Evidence of an individual’s

character or a character trait may not be admitted to prove that the individual acted

in accordance with that character or trait on a particular occasion. Id. 404(a)(1).

Additionally, “[e]vidence of a crime, wrong, or other act is not admissible to prove

a person’s character in order to show that on a particular occasion the person acted

in accordance with the character.” Id. 404(b)(1). Nevertheless, evidence of past

crimes, wrongs, or other acts may be admitted for other purposes.            See id.

404(b)(2). In applying Rule 404, “[t]he determination must be made whether the

danger of undue prejudice outweighs the probative value of the evidence” in

accordance with Rule 403. Id. 404(b) advisory committee’s note.

      As we’ve already discussed, the jury determined in its verdict form that

Green did not suffer from a “serious health condition” under the FMLA. Because

the jury determined that Green had not proven the first element of her claim -- that

she suffered from a “serious health condition” -- the evidentiary ruling that Green

disputes here did not factor into the jury’s deliberations. Thus, any error that the

district court may have made in admitting evidence of her history of absenteeism

was harmless.


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AFFIRMED.




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