                                                      United States Court of Appeals
                                                               Fifth Circuit
                                                            F I L E D
                      REVISED JUNE 12, 2007
                 UNITED STATES COURT OF APPEALS                June 11, 2007

                      FOR THE FIFTH CIRCUIT             Charles R. Fulbruge III
                                                                Clerk



                              05-20653



     WILTON J. WILLIAMS,

                                         Plaintiff-Appellant,

                                 v.

     LYONDELL-CITGO REFINING COMPANY, LTD.,

                                         Defendant-Appellee.



    On Appeal from the United States District Court for the
               Southern District of Texas, Houston
                           4:04-CV-2321



Before REAVLEY, DeMOSS, and BENAVIDES, Circuit Judges.

PER CURIAM:*


     Appellant Wilton Williams brought this action in federal

district court alleging that his former employer, Lyondell-Citgo

Refining (“LCR”), violated his rights under the Family and

Medical Leave Act (“FMLA”).   He alleged, first, that LCR wrongly

denied his request for leave, and second, that LCR then

retaliated against him for making such a request.    LCR moved for

     *
       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this opinion should not be published and is not precedent except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.
summary judgment and the district court granted that motion.

Williams filed a motion to amend or alter that final judgment

pursuant to Federal Rule of Civil Procedure 59, which the

district court denied.     Williams appeals that court’s ruling as

to both motions.    We find that summary judgment was proper, and

we AFFIRM.

                   I.   FACTS AND PROCEDURAL HISTORY

     Wilton Williams was employed by the defendant, Lyondell-

Citgo Refining (“LCR”), for about twenty-eight years.     In 2001,

through promotions, seniority and a merger, he was eligible to

seek a promotion to Chief Operator of the Sulfur Unit.     The

promotion required him to pass five qualifying exams.     In the

meantime, he continued to serve as Chief Operator of the

Environmental Unit.     By the end of 2002, he had passed four of

the five exams.    In early February of 2003, Williams was

suspended for a week without pay for failing to close a drain

valve, an allegation that Williams denies.     When Williams

returned to work on February 11, 2003, he was told that he would

have to take a competency examination.     Williams reviewed the

exam, but stated that he did not feel well enough to take it and

asked that it be postponed.     He then went to LCR’s medical

department for a check-up, and did not work that day.     In fact,

he never worked at LCR again.

     The next day, February 12, 2003, Williams requested an FMLA

packet so that he could receive FMLA funds for his absence.      He

                                   2
completed and submitted it to LCR on February 24, 2003.      There is

some debate about what happened thereafter.    Williams says he got

a phone call on March 7 from Linda Lamb, the FMLA coordinator at

LCR, informing him that his FMLA and sick pay benefits were being

denied.    LCR disputes this claim, and says that Williams

introduced no competent summary judgment evidence to support it.

Later, on March 24, Williams appeared at work for a scheduled

meeting.    Before the meeting began, Williams submitted early

retirement paperwork.    He says that he did so because he feared

that he would be terminated at the meeting, in which case he

would have to wait several years before collecting any of his

accrued benefits.    During the meeting, however, Williams was not

terminated; instead, he was told that he would have to take the

competency exam on March 26.    There was also a discussion at the

meeting about whether Williams should withdraw his retirement

papers, but he did not do so.    On March 25, Williams received the

first and only written notice that LCR denied his FMLA request.

Williams never withdrew his early retirement papers and never

returned to work.

     Williams eventually filed suit in district court, alleging

that LCR violated the FMLA once by denying his request for leave,

and again by retaliating against him for making that request in

the first place.1   Specifically, he asserts that LCR retaliated

     1
      We note at the outset that the parties disagree about whether
Williams has actually maintained both of these claims throughout

                                  3
by denying him company sick pay (as opposed to FMLA leave), and

forcing him to apply for early retirement, which he occasionally

refers to as constructive discharge.   The district court granted

summary judgment to the defendant on both FMLA claims.2   Williams

then filed a motion to alter or amend the judgment pursuant to

FED. R. CIV. P. 59(e), and the court denied that without comment.




this litigation. In the First Amended Complaint, Williams states
his cause of action in a single numbered clause, which reads as
follows:

     Because Defendant denied Plaintiff leave, discriminated,
     harassed and retaliated against Plaintiff, Plaintiff was
     forced to retire.    In doing so, Defendant willfully
     violated the FMLA, [and] its own policies . . . .

In its summary judgment motion, and again on appeal, LCR argued
that this was a single FMLA claim based on constructive discharge.
Both then and now, Williams has maintained that he is bringing two
FMLA claims against LCR.      He asserts that LCR violated his
prescriptive FMLA rights by denying him FMLA leave, and then
violated his proscriptive FMLA rights by retaliating against him
for filing an FMLA claim. This is common under the FMLA, which has
one provision granting prescriptive or substantive rights, and one
granting proscriptive rights. See § 29 U.S.C. 2615(a)(1) (granting
prescriptive rights); 29 U.S.C. § 2615(a)(2) (granting proscriptive
rights); see also Haley v. Alliance Compressor LLC, 391 F.3d 644,
649 (5th Cir. 2004) (explaining relevant statutory provisions).
Claims pursuant to § 2615(a)(1) are sometimes referred to as
“interference” or “entitlement” claims, while claims pursuant to §
2615(a)(2) are sometimes referred to as “retaliation” claims.
     The language of Williams’ pleading is certainly clumsy, but
the district court plainly understood Williams to raise FMLA claims
based on both sections of the FMLA. This much is clear from that
court’s order, which cites to and discusses both sections
separately. We therefore proceed to treat both claims here, as
well as the district court’s denial of the Rule 59 motion.
     2
      Williams also originally included an intentional infliction
of emotional distress claim in the court below, but he has
abandoned that claim here.

                                4
Williams appeals.

                       II. STANDARD OF REVIEW

     We review motions for summary judgment de novo, applying the

same standards as the district court.    FED R. CIV. P. 56.    Summary

judgment is inappropriate whenever a genuine issue of material

fact exists.   A genuine issue of material fact exists when, in

the context of the entire record, a reasonable fact-finder could

return a verdict for the non-movant.    Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248–49 (1986).    All evidence must be

construed in the light most favorable to the party opposing

summary judgment.    Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 587–88 (1986) (citations omitted).

     We review the district court’s denial of the Rule 59 motion

for abuse of discretion.    See Ford Motor Credit Co. v. Bright, 34

F.3d 322, 324 (5th Cir. 1994).   Under this standard, the district

court’s decision need only be reasonable.    Id. at 324.

                           III. DISCUSSION

A.   WILLIAMS’ PRESCRIPTIVE FMLA CLAIM FOR DENIAL OF LEAVE

     Williams first claims that he was denied FMLA leave to which

he was entitled.    29 U.S.C. § 2615(a)(1) makes it unlawful “for

any employer to interfere with, restrain, or deny the exercise of

or the attempt to exercise, any right provided under this

subchapter.”   On appeal, LCR does not even take up the question

of whether or not Williams was entitled to FMLA leave.        Rather,


                                  5
LCR hangs its hat on the premise that it did not deny Williams’

FMLA request until after he retired, and thus that there was no

interference with his rights.   LCR asserts that Williams’

retirement terminated his FMLA rights as a matter of law.

     The Department of Labor’s FMLA regulations provide that

“[i]f an employee gives unequivocal notice of intent not to

return to work, the employer’s obligations under FMLA to maintain

health benefits . . . and to restore the employee cease.”    29

C.F.R. § 825.309(b).   Williams does not challenge this legal

point, but disagrees about when his claim was actually denied.

Though he first received written notice of the denial on March

25, 2003, one day after he filed his early retirement papers, he

says he received word orally from Linda Lamb, LCR’s FMLA

coordinator, as early as March 7, 2003.

     Williams never mentioned any conversation with Ms. Lamb

during his lengthy deposition, despite repeated questioning about

when and how he found out that his FMLA request had been denied.

In fact, the only written evidence that Lamb communicated a

denial to Williams comes from Williams’ own handwritten notes

memorializing that conversation.3    The notes state that Lamb


     3
      Williams offered two other pieces of evidence that are not
relevant here: (1) his own affidavit swearing to the conversation
with Ms. Lamb, and (2) the deposition testimony of Williams’ union
representative, David Taylor, wherein Taylor says that Williams
told him about the conversation with Lamb. Williams’ affidavit
about the conversation with Ms. Lamb was filed after the district
court’s judgment was issued, and contradicts his deposition

                                 6
returned Williams’ call on March 7, and the topic is “Sick Pay.”

They go on to say:

     Linda-informed me that I did not have sufficient
     medical evidence to receive sick. Her Boss Corquodale
     made the decision to stop Pay after evaluation.

Unfortunately for Williams, these notes say nothing at all about

FMLA leave, so while they may corroborate a phone call on March

7, they do not support the proposition that Williams and Lamb

discussed his FMLA request.

     Apart from this written evidence, Williams introduced

evidence that it was company policy to respond to FMLA requests

within two business days of receiving all relevant information.

This does make the three-week delay in Williams’ case seem

anomalous, but it hardly proves the claim that Lamb did in fact

deny Williams’ FMLA request on March 7.   The same is true of

Williams’ last piece of evidence, a narrative report from the

Department of Labor, filed after an investigation into Williams’



testimony, wherein he never mentions a conversation with Lamb.
Under our precedent, a party may not create a fact issue by
submitting an affidavit that contradicts, without explanation, the
party’s prior deposition testimony. E.g., Copeland v. Wasserstein,
Perella & Co., 278 F.3d 472, 482–83 (5th Cir. 2002). Therefore, we
must disregard Williams’ post-trial affidavit. As for Taylor’s
testimony, it does not support Williams’ claim that Lamb told him
he was denied FMLA leave. In fact, it does exactly the opposite.
Taylor testified that Williams mentioned a conversation with Lamb
to him, but according to Taylor, Lamb told Williams that he “had
met the necessary criteria regarding his reasons for being off
under the Family Medical Leave Act.”         While this tends to
corroborate the claim that a phone conversation about the FMLA took
place, it completely contradicts the assertion that Lamb denied
Williams’ request during that phone call.

                                7
claim.   The report states: “The employer stated the company

doubted the validity of Mr. Williams’ illness, and therefore

denied the leave.”     Williams argues that this is proof that LCR

did deny his FMLA request, and not that it merely became moot

upon his retirement.    The question confronting Williams, however,

is not whether his claim was denied, which is surely was, but

when it was denied.    The narrative report sheds no light on this

issue.   Therefore, we do not believe Williams has introduced

enough evidence to allow a reasonable fact-finder to return a

verdict for Williams, and thus summary judgment was appropriate.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–49 (1986).4

B.   WILLIAMS’ PROSCRIPTIVE FMLA CLAIM FOR RETALIATION

     Williams’ second claim is that LCR retaliated against him

for filing an FMLA claim in violation of 29 U.S.C. § 2615(a)(2).

Specifically, he claims that LCR denied him company sick pay

(that is, the sick pay due to him as per company policy, not per

the FMLA), and constructively discharged him.    To establish prima

facie showing of retaliation under the FMLA, an employee must

show that (1) he engaged in a statutorily protected activity; (2)

he suffered an adverse employment decision; and (3) the decision



     4
      Williams also appears to argue that if his FMLA request
really was denied on March 24, as LCR contends, then this amounts
to a “per se” violation of the FMLA. Williams’ argument on this
score, if indeed he is making one, is not only confusing and
unclear, but probably abandoned, as there is no indication that it
was not raised below. We need not address it further.

                                   8
was causally related to the protected activity.    See Hunt v.

Rapides Healthcare Sys., LLC, 277 F.3d 757, 768 (5th Cir. 2001).

We find that Williams has failed to raise a genuine issue of

material fact as to either constructive discharge or denial of

sick pay.   First, the facts make clear that Williams was not

constructively discharged.   Second, even if LCR’s denial of sick

pay is an “adverse employment action” for FMLA purposes, which

LCR disputes, Williams has presented virtually no evidence that

said decision was causally connected to his filing an FMLA

request.5

     In building his constructive discharge claim, Williams lists

several incidents of harassment dating back to 2001.   For FMLA

purposes, however, the only incidents that matter are those that

took place between February 11, 2003 (the day he requested leave)

and March 24, 2003 (the day he resigned).6   During this window

there evidence simply does not allow for the conclusion that LCR

made working conditions “so intolerable that a reasonable

employee would feel compelled to resign.”    Hunt, 277 F.3d at 771


     5
      In light of this conclusion, we need not address LCR’s
contention that denial of sick pay is not an adverse employment
decision for FMLA purposes.
     6
      More specifically, Williams applied for retirement before the
March 24 meeting, so any harassment he endured at the meeting—which
makes up a significant number of his complaints—is arguably
irrelevant. However, the conversations at the meeting certainly
suggest that Williams’ retirement was not yet final, because his
supervisors ordered him to return to work and take his competency
exam.

                                 9
(citations omitted).   Rather, the evidence, including Williams’

deposition, indicates that LCR wanted Williams to return to work

so that he could take the competency examination, and that

Williams himself wanted to return.    This is insufficient to

establish constructive discharge, and thus Williams cannot set

forth a viable proscriptive FMLA claim on that basis.

     As to the denial of sick pay, LCR asserts that it made that

decision because it disbelieved Williams’ illness, not to

retaliate against him for filing an FMLA claim.    Williams makes

little effort to show otherwise.     At most he suggests that LCR’s

purported disbelief of his illness was mere pretext, but his

reasoning is entirely unavailing.7    The summary judgment evidence

did not raise a fact issue that the real reason behind the denial



     7
      Williams’ grounds for suspicion are as follows: (1) Under
FMLA guidelines, an employer who genuinely doubts the validity of
an illness should request a second opinion at its own expense,
which LCR did not do; (2) LCR placed Williams under surveillance
for a ten-day period, but the investigator saw nothing out of the
ordinary; (3) There is no indication that Williams ever abused the
sick leave system in the past; (4)      LCR deviated from its own
policy of provisionally approving all employees for sick pay; and
(5) Union members had expressed some grievances with LCR’s handling
of FMLA claims. Simply put, none of these reasons indicate that
LCR’s disbelief of Williams’ illness was merely pretext for
retaliating against him. In fact, the first two explicitly favor
LCR.    First, the FMLA regulations do not control how LCR
administers company sick pay, and there is no reason why LCR would
request a second opinion (at its own expense) if it sincerely felt
Williams was lying.       Second, the fact that LCR hired an
investigator only supports its claim that it honestly believed
Williams was lying. The remaining factors do not make it more or
less likely that LCR was using a false excuse about Williams’
illness as a pretext for denying him sick pay.

                                10
of sick pay was retaliation against Williams for having filed his

FMLA request.   Without such a showing, Williams cannot make out a

proscriptive FMLA claim based on the denial of sick pay.

     Accordingly, because we find that Williams failed to

introduce sufficient evidence for a reasonable fact-finder to

rule in his favor as to either his prescriptive or his

proscriptive FMLA claims, we AFFIRM the district court’s grant of

summary judgment for LCR as to both claims.

     We hasten to add, however, that we took very seriously

Williams’ claim that during its recitation of the facts, the

district court did not grant Williams every favorable inference

to which he was entitled.    We agree with Williams that the

district court’s rendition of the facts does seem to favor LCR in

a few places.   However, we are equally convinced that those few

missteps were not material to the outcome of the case in any way,

and our de novo review of the record satisfies us that LCR’s

motion for summary judgment was nonetheless properly granted.

C. THE RULE 59 MOTION TO AMEND OR ALTER A FINAL JUDGMENT

     A motion pursuant to FED. R. CIV. P. 59(e) allows a losing

party to seek the trial court’s reconsideration of its order

granting summary judgment.    If the party seeking reconsideration

attaches additional materials to its motion that were not

presented to the trial court for consideration at the time the

court initially ruled on the summary judgment motion, the



                                 11
district court may consider those materials at its own

discretion.   Ford Motor Credit Co. v. Bright, 34 F.3d 322, 324

(5th Cir. 1994).   Ordinarily when a party files a Rule 59 motion,

it is to present the court with new evidence that was not

available to the court at the time of judgment.   In this case,

however, the new evidence Williams sought to introduce was an

affidavit from Williams himself, wherein he stated for the first

time that LCR had denied his FMLA leave during the March 7 phone

call.   This new evidence was contrary to his deposition testimony

and was presented after the court had already granted summary

judgment.   See Copeland v. Wasserstein, Perella & Co., 278 F.3d

472, 482–83 (5th Cir. 2002) (noting that party may not create

fact issue by submitting an affidavit that contradicts, without

explanation, prior deposition testimony).    Therefore, we are

satisfied that the district court’s ruling was not an abuse of

discretion.

                          IV.   CONCLUSION

     In light of the foregoing, the judgment of the district

court is AFFIRMED in all respects.




                                 12
