     Case: 14-41458      Document: 00513097609         Page: 1    Date Filed: 06/29/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-41458                         United States Court of Appeals
                                  Summary Calendar                                Fifth Circuit

                                                                                FILED
                                                                            June 29, 2015
MARCUS RAY HARRELSON,                                                      Lyle W. Cayce
                                                                                Clerk
              Plaintiff - Appellant

v.

LUFKIN INDUSTRIES, INCORPORATED,

              Defendant - Appellee




                   Appeal from the United States District Court
                        for the Eastern District of Texas
                               USDC 9:13-CV-111


Before JOLLY, PRADO, and HAYNES, Circuit Judges.
PER CURIAM:*
       Plaintiff Marcus Harrelson appeals the district court’s grant of summary
judgment in favor of Defendant Lufkin Industries, Inc. (“Lufkin”) on
Harrelson’s interference and retaliation claims under 29 U.S.C. § 2615 of the
Family and Medical Leave Act (“FMLA” or “the Act”). Because Harrelson
waived his interference claim by failing to argue that he suffered from a



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 14-41458    Document: 00513097609    Page: 2   Date Filed: 06/29/2015



                                No. 14-41458
“serious health condition” and cannot establish a prima facie case of
retaliation, we AFFIRM the decision of the district court.
                                         I.
      Harrelson began working for Lufkin in August of 2004 and was
chronically absent from work due to an upper-respiratory condition. On May
1, 2012, Harrelson brought an FMLA form provided by Lufkin to his physician,
Dr. Saxton, who indicated that Harrelson’s condition began on May 1, 2012,
and would probably conclude on May 3, 2012. Harrelson was absent from work
on May 1, 2012, and May 2, 2012, and returned the completed FMLA form to
Lufkin’s Human Resource Manager, David Duford, on May 4. Harrelson was
absent from work on seven more occasions between May 9, 2012, and June 3,
2012, and he claims that on each occasion he received permission to take FMLA
leave from an unidentified supervisor.
      On June 5, 2012, Harrelson met with two supervisory employees who
informed him that a computer-generated warning indicated that Harrelson
had been repeatedly absent from work. Harrelson explained that he had
submitted FMLA paperwork and that he was entitled to leave for the days in
question. Harrelson was then fired on June 11, 2012, for excessive absences.
At that point, Harrelson was advised that the FMLA forms signed by Dr.
Saxton only entitled Harrelson to two days of leave. Harrelson explained that
Dr. Saxton had made a mistake when filling out the forms and requested that
Dr. Saxton be allowed to amend the forms. Lufkin consented.
      Dr. Saxton revised the FMLA form to indicate that Harrelson would
require leave for an “unknown” number of days, even though the form specified
that “‘[u]nknown’ or ‘indeterminate’ is not sufficient to determine FMLA
coverage . . . [and f]ailure to provide sufficient information may cause the
employee’s FMLA request to be delayed or denied.”            Lufkin refused to
reconsider Harrelson’s termination in light of Dr. Saxton’s revision. Harrelson
                                         2
    Case: 14-41458     Document: 00513097609      Page: 3    Date Filed: 06/29/2015



                                  No. 14-41458
filed suit on May 28, 2013, and the district court subsequently granted
summary judgment in Lufkin’s favor. Harrelson timely appealed.
                                        II.
      “We review a grant of summary judgment de novo, applying the same
standard as the district court.” Ion v. Chevron USA, Inc., 731 F.3d 379, 389
(5th Cir. 2013). Summary judgment is appropriate “if the movant shows that
there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” FED. R. CIV. P. 56(a). We “consider all facts
and evidence in the light most favorable to the nonmoving party.” Ion, 731
F.3d at 389.
      “The FMLA provides eligible employees with twelve workweeks of leave
during a twelve-month period upon a triggering event, including [as relevant
here] ‘a serious health condition that makes the employee unable to perform
the functions of [his] position.’” Silva v. City of Hidalgo, Tex., 575 F. App’x 419,
424 (5th Cir. 2014) (unpublished) (quoting 29 U.S.C. § 2612(a)(1)(D)). To
establish a prima facie case for interference with FMLA rights, plaintiffs must
demonstrate that they are entitled to leave under the FMLA. See Mauder v.
Metro. Transit Auth., 446 F.3d 574, 580 (5th Cir. 2006).          As part of this
showing, Harrelson must present evidence of a “serious health condition,” see
Mauder, 446 F.3d at 580, which the FMLA defines as “an illness, injury,
impairment, or physical or mental condition that involves—(A) inpatient care
in a hospital, hospice, or residential medical care facility; or (B) continuing
treatment by a health care provider.” 29 U.S.C. § 2611(11).
      Although the district court concluded that Harrelson failed to make the
necessary showing, Harrelson failed to address this issue on appeal. It is well
established that the “[f]ailure adequately to brief an issue on appeal
constitutes waiver of that argument.” Procter & Gamble Co. v. Amway Corp.,
376 F.3d 496, 499 n.1 (5th Cir. 2004) (citing FED. R. APP. P. 28(a)(9)(A)).
                                         3
     Case: 14-41458        Document: 00513097609        Page: 4    Date Filed: 06/29/2015



                                       No. 14-41458
Harrelson’s waiver means that his interference claim necessarily also fails; he
cannot demonstrate as a matter of law that all of the elements of his
interference claim are satisfied. 1
       Harrelson also claims that he was retaliated against for taking FMLA
leave. Where there is no direct evidence of discrimination, the court applies
the McDonnell Douglas 2 framework. 3 Hunt v. Rapides Healthcare Sys. LLC,
277 F.3d 757, 768 (5th Cir. 2001). Under this framework, Harrelson must first
establish a prima facie case of retaliation by showing: (1) he was protected
under the FMLA; (2) he suffered an adverse employment decision; and either
(3a) he was treated less favorably than an employee that had not requested
FMLA leave; or (3b) the adverse decision was made because he took FMLA
leave. Id. Once Harrelson has established a prima facie case, the burden then
shifts to Lufkin to articulate a legitimate, non-discriminatory reason for
Harrelson’s termination. Id. If Lufkin can articulate such a reason, the burden
shifts back to Harrelson to show by a preponderance of the evidence that the
proffered reason was pretextual. Id. Harrelson’s claim fails at several steps.
       Lufkin argues that Harrelson cannot establish a prima facie case of
retaliation because Harrelson did not engage in protected conduct under the




       1  Because we conclude that Harrelson waived this argument, we need not address the
district court’s alternate holding that Harrelson failed to provide adequate notice in accord
with the FMLA’s requirements.

       2   McDonnel Douglas Corp. v. Green, 411 U.S. 792 (1973).

       3 Neither party argues that the court should apply the but-for standard articulated in
University of Texas Southwestern Medical Center v. Nassar, 133 S. Ct. 2517, 2534 (2013),
which is employed in Title VII retaliation cases. We have yet to decide whether Nassar
applies to the FMLA context. As Harrelson contends that Lufkin fired him solely in
retaliation for taking FMLA leave, the mixed-motive argument is not at issue in this case.
See Ion, 731 F.3d at 389–90. Therefore, we need not address Nassar’s effect, if any, on FMLA
retaliation claims.
                                              4
     Case: 14-41458      Document: 00513097609        Page: 5     Date Filed: 06/29/2015



                                     No. 14-41458
FMLA. 4 While “a plaintiff need not establish a violation of the substantive,
prescriptive provisions of the FMLA to allege a violation of the proscriptive
provisions,” Hunt, 277 F.3d at 769, Harrelson’s failure to substantiate his
interference claim is inconsistent with his retaliation claim under the facts of
this case.   The FMLA bars an employer only from retaliating against an
employee for engaging in conducted protected by the Act. See 29 U.S.C. §
2615(a). As discussed above, Harrelson did not engage in protected conduct
when he was repeatedly absent during May and June of 2012. As such, he was
not protected by the FMLA, and his retaliation claim fails at the first step. See
id. at 768; see also Lanier v. Univ. of Tex. Sw. Med. Ctr., 527 F. App’x 312, 317
(5th Cir. 2013) (unpublished) (holding that plaintiff’s retaliation claim
necessarily failed where the plaintiff did not submit a proper request for FMLA
leave); cf. Grubb v. Sw. Airlines, 296 F. App’x 383, 390 (5th Cir. 2008)
(unpublished) (concluding that there was “enough of an issue of fact as to
whether [the plaintiff] had a ‘serious health condition’ for the purposes of
FMLA ‘protection’ to survive summary judgment”). 5
      Even assuming arguendo that Harrelson can establish a prima facie
case, he fails to rebut Lufkin’s proffered legitimate, non-discriminatory reason
for dismissing Harrelson.        Harrelson’s employment contract provides that
employees are permitted six unpaid, unauthorized absences per year. The
employee receives a written warning for each additional absence and is


      4 There is no dispute that Harrelson was “eligible” for FMLA leave as defined by the
Act. An “eligible employee” is one who has been employed “for at least 12 months by the
employer with respect to whom leave is requested” and has been employed “for at least 1,250
hours of service with such employer during the previous 12 month period.” 29 U.S.C.
§ 2611(2)(A).

      5  Although Lanier and Grubb are not “controlling precedent,” they “may be [cited as]
persuasive authority.” Ballard v. Burton, 444 F.3d 391, 401 n.7 (5th Cir. 2006) (citing 5TH
CIR. R. 47.5.4).

                                            5
     Case: 14-41458       Document: 00513097609         Page: 6    Date Filed: 06/29/2015



                                      No. 14-41458
terminated upon the thirteenth unpaid, unauthorized absence. 6                      Lufkin
maintains that it fired Harrelson pursuant to this policy, as Harrelson never
received authorized leave for his repeated absences between May 9, 2012, and
June 3, 2012. Although Harrelson disputes this contention, attesting that he
received authorization to take FMLA leave from an unnamed supervisor and
therefore did not violate the absence policy in his contract, it is insufficient to
create a material dispute of fact as to whether the proffered reason was
pretextual.     Lufkin’s policy required employees to contact the Human
Resources Manager with requests for FMLA leave. See 29 C.F.R. § 825.302(d)
(stating that an employee may be denied leave for failing to abide by an
employer’s “usual and customary notice and procedural requirements for
requesting leave”). Thus, Harrelson’s conversations with his supervisor cannot
shield him from dismissal. Because Harrelson does not provide any further
evidence to rebut Lufkin’s proffered reason for dismissing him, his retaliation
claim fails. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148
(2000) (noting that “a weak issue of fact as to whether the employer’s reason
was untrue” is insufficient to prove retaliation).
       Accordingly, we AFFIRM the decision of the district court.




       6 Harrelson maintains that Lufkin violated its own policy by not providing Harrelson
with a written warning for each subsequent absence, but instead only provided a warning for
two of his absences. Lufkin disputes this characterization, claiming that it provided
Harrelson with a warning for each absence. This dispute is immaterial as the “[f]ailure to
follow internal procedures is generally not enough to create a genuine issue of fact as to
discriminatory purpose.” See Grubb, 296 F. App’x at 390 (citing Moore v. Eli Lilly & Co., 990
F.2d 812, 819 (5th Cir. 1993)).
                                             6
