     Case: 10-10317     Document: 00511535125         Page: 1     Date Filed: 07/08/2011




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                            July 8, 2011

                                      No. 10–10317                         Lyle W. Cayce
                                                                                Clerk

JACK BELL,

                                                  Plaintiff–Appellant
v.

DALLAS COUNTY,

                                                  Defendant–Appellee



                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:08-CV-1834


Before GARZA, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
        In this Family Medical Leave Act (“FMLA”) lawsuit, Plaintiff-Appellant
Jack Bell (“Bell”) appeals the district court’s order granting summary judgment
to Bell’s former employer, Defendant-Appellee Dallas County (“County”). Bell
argues that the district court erred by denying his summary judgment motion
and by concluding that the County had not interfered with his FMLA rights and
had not retaliated against him. For the reasons discussed below, we AFFIRM
the district court’s summary judgment orders as to Bell’s retaliation claim. We

        *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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VACATE that court’s orders in so far as they pertain to a claim of interference
and REMAND for further consideration.
                                              I
       The Dallas County Department of Health and Human Services (“County”)
hired Bell as a disease intervention specialist. Bell suffered from allergic
rhinitis and ceruminosis (excessive earwax secretions) and before Bell became
eligible for FMLA leave, he was often absent from work due to illness.1 Bell’s
absences became frequent and his supervisors repeatedly warned him that these
absences were excessive. Once Bell became eligible for FMLA leave, the County
granted Bell 480 hours of intermittent FMLA leave. As permitted under the
FMLA, the County required Bell to use all of his sick and annual leave before he
could use his intermittent FMLA leave. See 29 C.F.R. § 825.207 (2010).
       As Bell’s tenure continued, he frequently called in sick and missed
numerous days of work. This prompted County officials to warn Bell that the
County would revoke his intermittent FMLA leave status and place him on full-
time FMLA leave unless his physician approved his return to work on a full-time
basis. Bell’s physician authorized his to return to work, but shortly thereafter,
Bell was absent for four days. The next month, Bell was absent for thirteen
days. The County classified the thirteen absences as FMLA leave and, at the
end of that month, the County informed Bell that it had placed him on full-time
FMLA leave. Bell responded in a letter, stating that he had not requested to use
his FMLA leave and that he had no “need to exhaust” his FMLA leave “at this
time.” The County wrote back, stating that because Bell “had indicated he did
not need” to use his FMLA leave, all future absences would be unexcused and
would result in disciplinary action. Bell returned to his job after this exchange,


       1
         An employee is eligible for the protections offered under the FMLA if they have been
employed with the employer for at least twelve months and have worked for at least 1,250
hours of service during the previous twelve-month period. 29 U.S.C. § 2611(2)(A).

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                                       No. 10-10317

but two weeks later, in late April, Bell missed five workdays. After these
absences, the County terminated Bell for violating the official attendance policy.2
Bell sued the County, alleging that his employer had violated the FMLA and the
Americans with Disabilities Act (“ADA”). Bell moved for summary judgment
and the district court denied the motion. Subsequently, the County moved for
summary judgment, arguing that Bell’s FMLA retaliation claim failed as a
matter of law. In response, Bell voluntarily requested dismissal of his ADA
claim and argued that his Complaint asserted two claims under the FMLA: One
alleged retaliation and the other alleged interference with Bell’s FMLA rights.
The district court issued an opinion in which the court only discussed Bell’s
retaliation claim and granted summary judgment to the County on all “claims.”
The opinion did not address whether Bell’s Complaint properly asserted an
interference claim. Bell appealed, arguing that the district court had erred by
granting summary judgment to the County and by denying Bell’s earlier motion
for summary judgment.3
                                             II
       Bell’s appeal presents two issues. First, we must determine whether the
district court erred by concluding that as a matter of law, the County did not
retaliate against Bell for his use of FMLA leave. Second, we must consider
whether Bell’s Complaint alleged a FMLA interference claim.
       We review the district court’s grant of summary judgment de novo, and we
will affirm if the record demonstrates that no genuine issues of material fact

       2
        The County’s attendance policy considers an employee’s absences excessive if the
employee is absent from work for more than six days “or a total of 48 hours during a 12-month
period and” the absences are “frequently unplanned or indicate a pattern,” or negatively
impact office productivity or the quality of services offered.
       3
         Bell also alleged that the district court erred by failing to address his evidentiary
objection. Bell waived this argument, however, because his brief does not properly present the
argument and the brief fails to identify a standard of review for this issue. See FED. R. APP.
P. 28(a)(5), (a)(9)(B).

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exist. Richardson v. Monitronics Int’l., Inc., 434 F.3d 327, 332 (5th Cir. 2005).
Under a de novo standard, we consider evidence “in the light most favorable to
the non-movant.” LeMaire v. La. Dep’t of Transp. & Dev., 480 F.3d 383, 387 (5th
Cir. 2007). The party moving for summary judgment bears the burden of
proffering evidence that demonstrates the absence of a genuine issue of material
fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322–25 (1986). If this burden is met,
the respondent must identify evidence that demonstrates a trial is appropriate
because a genuine issue of fact exists. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255–57 (1986).
      The Family Medical Leave Act of 1993, 29 U.S.C. § 2601, et al., permits
individuals who work for covered employers to take temporary leave for a
“serious health condition,” 29 U.S.C. § 2612, which includes illnesses that
involve “continuing treatment by a health care provider.” 29 U.S.C. § 2611.
Section 2615(a)(2) prohibits discrimination or retaliation against an employee
for exercising their rights under the FMLA. Hunt v. Rapides Healthcare Sys.,
L.L.C., 277 F.3d 757, 763 (5th Cir. 2001). When direct evidence of retaliation is
unavailable, a plaintiff may establish a prima facie case under a modified
McDonnell-Douglas approach by proving that: (1) the plaintiff engaged in
protected activity; (2) the plaintiff suffered an adverse employment decision;
and, (3) he was treated less favorably than an employee who had not requested
FMLA leave; or, (4) the adverse decision was due to the plaintiff’s use of FMLA
leave. Hunt, 277 F.3d at 768. To demonstrate a causal link between the
protected activity and termination, a plaintiff must show only that “the protected
activity and the adverse employment action are not completely unrelated.”
Mauder v. Metro. Transit Auth., 446 F.3d 574, 583 (5th Cir. 2006). If the
plaintiff does this, the burden shifts to the employer to demonstrate a legitimate
reason for the employee’s discharge. Richardson, 434 F.3d at 332. If the
employer demonstrates a legitimate reason for termination, the burden shifts

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back to the employee to show “by a preponderance of the evidence that the
employer’s articulated reason is a pretext for discrimination.” Id. at 332–33.
       Bell contends that the district court erred by concluding that his
retaliation claim failed as a matter of law. The County argues that Bell was
fired because his non-FMLA related absences violated the County’s attendance
policy. Bell rebuts this by raising three arguments as to how the County
retaliated against him and violated § 2615(a)(2). But, a review of the record
demonstrates that there are no questions of material fact as to whether the
County retaliated against Bell for his use of FMLA leave.
       Initially, the County granted Bell intermittent FMLA leave, which meant
he could use the leave for unplanned absences or scheduled leave. For several
weeks, Bell was absent on an intermittent basis, missing a few days of work each
month. After Bell was absent for thirteen days in one month, the County
informed Bell that it had placed him on full-time FMLA leave until his physician
authorized his return to work or he exhausted his leave. Bell answered by
stating that he was well enough to be at work and that he did not “need to
exhaust” his FMLA entitlements “at this time.” The County responded with a
letter, which stated that because Bell did not “need” to use his FMLA leave, any
future absence would be unexcused and would result in disciplinary action.
Shortly after this warning, Bell called in sick for five days in a row.4 These
absences prompted the County to examine Bell’s attendance record during the
past year and from this record, the County determined that Bell’s non-FMLA
absences had exceeded 102 hours, which was excessive and violated the County’s
leave policy.5


       4
        The County asserts that for at least one of these five absences, Bell “did not timely
and properly notify his immediate supervisor of his absence.”
       5
       It appears that the County’s leave calculation included Bell’s final five absences,
which Bell argues were covered by the FMLA. But even if one does not count these five

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       The County did not fire Bell because he sought to use his FMLA leave or
because Bell opposed “an unlawful procedure” under the FMLA. Kauffman v.
Fed. Express Corp., 426 F.3d 880, 885 (7th Cir. 2005). Rather, the County fired
Bell because his non-FMLA absences were excessive and the absences had
negatively impacted the office’s productivity. Under the County’s attendance
policy these reasons are grounds for termination. Contrary to Bell’s assertion,
the evidence demonstrates that the County terminated Bell for violating the
attendance policy, not because he used his FMLA leave. Furthermore, Bell
offers no evidence that disputes the County’s well-documented reasons for
terminating Bell. Bell cannot establish a prima facie case of retaliation under
the FMLA and the district court did not err by granting summary judgment in
favor of the County.
                                           III
       Bell also appeals the district court’s denial of his motion for summary
judgment on his interference claim along with that court’s order granting
summary judgment to the County and dismissing all of Bell’s “claims.”
       Under § 2615(a)(1), an employer is prohibited from interfering with or
restraining an employee from exercising, or attempting to exercise, their FMLA
rights. The term “interference with” includes “not only refusing to authorize
FMLA leave, but discouraging an employee from using such leave.” 29 C.F.R.
§ 825.220(b) (2010); see Stallings v. Hussmann Corp., 447 F.3d 1041, 1050–51
(8th Cir. 2006). With an interference claim, an employee must show that he was
denied his entitlements under the FMLA, or, that an employer did not respect
the employee’s FMLA entitlements. See Kauffman, 426 F.3d at 884.
       In his brief, Bell presents a number of arguments as to why the district
court erred by dismissing this claim and by denying his request for summary


contested absences, the amount of time Bell missed from work still qualifies as “excessive”
under the County’s attendance policy.

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                                    No. 10-10317

judgment. Bell alleges several instances occurred when the County erroneously
classified an absence as FMLA-related, involuntarily placed him on FMLA leave,
or classified FMLA-related absences as unexcused. Bell argues that these acts
constitute interference under § 2615(a)(1). The district court did not squarely
rule on this issue, making review difficult.
      In his motion for summary judgment, Bell argued that the County had
interfered with his right to use FMLA leave. The County responded by arguing
that Bell’s Complaint had failed to properly raise an interference claim.6 The
district court’s one-sentence order did not address either argument.
Subsequently, when the County moved for summary judgment, it asked the
district court to dismiss Bell’s action “in its entirety.”        But the County’s
accompanying memorandum only addressed Bell’s retaliation claim. Bell’s
response asserted that the County had retaliated against him as well as
interfered with his FMLA rights. The County responded by arguing that Bell’s
Complaint did not properly raise an interference claim and that if the district
court held otherwise, Bell’s interference claim also failed as a matter of law. The
district court’s opinion discussed the retaliation claim, but the opinion failed to
address whether Bell’s Complaint had raised a valid interference claim. Despite
this omission, the opinion and order granted summary judgment on “all claims”
and dismissed the action with prejudice. The accompanying judgment also
dismissed Bell’s “claims” with prejudice.
      Under FED. R. CIV. P. 52(a)(3), a district court is not required to state
factual findings or legal conclusions when ruling on a summary judgment
motion. See Wildbur v. Arco Chem. Co., 974 F.2d 631, 644 (5th Cir. 1992). But,
a district court must explain its reasoning for granting summary judgment in
enough detail for us to analyze whether that court applied the correct legal

      6
        The County’s memorandum did, however, request leave from the district court to
address this issue if that court determined Bell’s Complaint properly raised the claim.

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standard. Id.; see also Myers v. Gulf Oil Corp., 731 F.2d 281, 283–84 (5th Cir.
1984). “When we have no notion of the basis for a district court’s decision,
because its reasoning is vague or was simply left unsaid, there is little
opportunity for effective review.” Myers, 731 F.2d at 284; see also White v. Tex.
Am. Bank/Galleria, N.A., 958 F.2d 80, 82 (5th Cir. 1992). In this case, such a
statement is “not only helpful, but essential” because the parties have put forth
such divergent arguments about the interference claim. Jot-Em-Down Store
(JEDS) Inc. v. Cotter & Co., 651 F.2d 245, 247 (5th Cir. Unit A July 1981).
Without any indication of the basis of the district court’s order “we cannot
adequately review its decision.” Myers, 731 F.2d at 284. We remand this issue
for further consideration as to whether Bell’s Complaint raised an interference
claim under the FMLA.
                                       IV
      Accordingly, we AFFIRM the district court’s summary judgment orders as
to Bell’s retaliation claim. We VACATE the district court’s summary judgment
orders in so far as they pertain to a FMLA interference claim and we REMAND
the case for further findings and conclusions consistent with this opinion.




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