     Case: 16-50878      Document: 00513771336         Page: 1    Date Filed: 11/23/2016




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

                                    No. 16-50878                                    FILED
                                  Summary Calendar                          November 23, 2016
                                                                               Lyle W. Cayce
                                                                                    Clerk
PHILLIP LOVIC BURNETTE, II,

                                                 Plaintiff - Appellant
v.

RATEGENIUS LOAN SERVICES, INCORPORATED,

                                                 Defendant - Appellee



                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:16-CV-577


Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       In May 2016, Phillip Burnette filed a complaint in district court against
his former employer, RateGenius Loan Services, alleging interference and
retaliation under the Family and Medical Leave Act.                  The district court
adopted the magistrate judge’s recommendation to dismiss both claims as
frivolous under 28 U.S.C. § 1915(e)(2). Burnette filed a timely notice of appeal.
We AFFIRM.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-50878    Document: 00513771336     Page: 2   Date Filed: 11/23/2016



                                 No. 16-50878
                               BACKGROUND
      Burnette brought this suit pro se and was granted leave to proceed in
forma pauperis. His suit was dismissed on the pleadings, so we accept the
allegations of the complaint as true on appeal. See Watts v. Graves, 720 F.2d
1416, 1419 (5th Cir. 1983).
      Burnette claimed that during the latter half of 2013 and while employed
at RateGenius, he began experiencing dizziness and bouts of unconsciousness.
No formal diagnosis was made at that time, but he discussed his condition with
the vice president of his department. After that discussion, Burnette took
several days off work for medical testing.
      In December 2013, Burnette had an accident in which he crashed his
vehicle into a house. He alleges the crash occurred because a coughing spell
caused him to lose consciousness while driving. Burnette was not arrested, but
the police began investigating the accident to determine whether he had been
driving while intoxicated.    When Burnette reported the accident to his
employer, he said it was caused by a coughing spell. He did not mention the
police investigation. The vice president to whom he reported the accident
agreed Burnette could work from home to minimize the risks of his driving to
and from work. Burnette was later charged and arrested for DWI in connection
with the accident. The complaint contains no assertions about the result of the
charges.
      Burnette alleged that an ear, nose, and throat specialist named Jacob
Minor diagnosed him with Syncope on April 29, 2014. The complaint says
Syncope is characterized by temporary bouts of unconsciousness caused by a
fall in blood pressure. Burnette notified RateGenius of his diagnosis the day
after Dr. Minor allegedly informed him. On May 5, 2014, a human resources
representative asked Burnette to provide a note from his doctor confirming the
diagnosis. The original complaint is silent as to whether Burnette did so. A
                                       2
    Case: 16-50878     Document: 00513771336     Page: 3   Date Filed: 11/23/2016



                                  No. 16-50878
proposed amended complaint claims that Burnette mailed such a note to his
employer after his termination and that it should have been received within 30
days of the request. The district court denied leave to amend. RateGenius
terminated Burnette on May 19, 2014. Burnette claims his employer gave him
two reasons: (1) failure to provide documentation of his diagnosis and (2) lying
about the nature of his accident, citing the police investigation of a possible
DWI. At the time of his termination, Burnette had been working remotely for
four months.
      After his termination, Burnette filed suit under the Family and Medical
Leave Act (“FMLA”). He claims RateGenius interfered with his right to take
leave under the FMLA by failing to notify him of his right to do so. See 29
U.S.C. § 2615(a). He also claims he was terminated in retaliation for notifying
RateGenius of his potential FMLA-qualifying condition. The magistrate judge
recommended both claims be dismissed as frivolous. The district court agreed
and dismissed with prejudice. Burnette filed a timely appeal.


                                 DISCUSSION
      Only one party is before us because RateGenius was never served. The
magistrate judge reviewed the complaint and Burnette’s motion to proceed in
forma pauperis, then determined the suit was frivolous.            Service upon
RateGenius was withheld until the district court determined whether the suit
should be dismissed. The district court agreed with the magistrate judge’s
recommendations. Our analysis will rely on the allegations in the original and
proposed amended complaints.
      The court will dismiss a case in which the plaintiff is proceeding in forma
pauperis if it determines the action is frivolous. 28 U.S.C. § 1915(e)(2)(B)(i). A
frivolous complaint “lacks an arguable basis in law or fact.” Allison v. Kyle, 66
F.3d 71, 73 (5th Cir. 1995). “We review the dismissal of a frivolous complaint
                                        3
    Case: 16-50878    Document: 00513771336     Page: 4   Date Filed: 11/23/2016



                                 No. 16-50878
for abuse of discretion.” Harper v. Showers, 174 F.3d 716, 718 (5th Cir. 1999).
An abuse of discretion occurs when the district court relies on erroneous
findings of fact or conclusions of law or misapplies the law to the facts. Combs
v. City of Huntington, Tex., 829 F.3d 388, 391 (5th Cir. 2016).
      Burnette alleges four points of error. First, he argues the district court
erred by finding he does not satisfy the elements of an interference claim under
the FMLA. He makes the same complaint about his retaliation claim. Third,
he argues the district court erred by not permitting him to file an amended
complaint. Finally, Burnette argues the district court erred by ordering that
the dismissal of the complaint be with prejudice.


   a. Interference
      The FMLA prohibits employers from “interfer[ing] with, restrain[ing], or
deny[ing]” employees the right to take leave under its provisions. 29 U.S.C.
§ 2615(a)(1). Burnette’s claim of interference in both the original and proposed
amended complaints focuses on the events that began in April 2014, when he
informed RateGenius that he had been diagnosed with a specific medical
condition. He does not claim any interference occurred during the four-month
period he was allowed to work from home.
      Burnette’s complaint stated that the interference started when his
employer requested a note from his doctor but did not at that time inform him
of his rights under the FMLA. Under federal regulations that are summarized
in the complaint, the employer is to provide certain information when an
employee begins the process of seeking FMLA leave. See 29 C.F.R. § 825.300.
Burnette’s proposed amended complaint adds that he was unaware of the
existence of the FMLA throughout his employment.
      The district court found Burnette’s claim for interference “lack[ed] an
arguable basis in law or fact.” The district court concluded that even if the
                                       4
    Case: 16-50878    Document: 00513771336     Page: 5   Date Filed: 11/23/2016



                                 No. 16-50878
employer failed to notify Burnette of his FMLA rights, there is no claim as to
how that failure caused any monetary loss or loss in employment status. As
the district court noted, the one specific injury Burnette alleged was this: “Had
he been appropriately apprised of his leave options, Plaintiff could have
planned and structured his leave time differently and accordingly, for example,
moving closer to work so as not to have to drive to work.” The court concluded,
“Plaintiff has failed to adequately plead he was prejudiced by Defendant’s
failure to apprise him of his FMLA rights.” The proposed amended complaint
goes further as to injury. There, Burnette claims he lost his entitlement to 12
weeks of unpaid leave and also lost his job, which provided an income of at
least $100,000 annually.
      One difficulty raised by both complaints is that neither party at the time
of these events is claimed to have discussed rights and duties under the FMLA.
Burnette was not seeking leave, and RateGenius was not asking for
information that would allow it to determine if the FMLA applied. Burnette
states that he was not aware of the FMLA due to his employer’s failure to
provide notice. There is no claim, though, that RateGenius failed to post the
required notice to all employees about the Act. See 29 C.F.R. § 825.300(a).
Instead, Burnette claims that when he informed his employer of the diagnosis,
the response should have included notice of his rights.
      Burnette’s failure to assert that he mentioned the FMLA is not fatal, as
an employee does not need to refer specifically to the FMLA in seeking leave.
A regulation provides that any “employee giving notice of the need for FMLA
leave does not need to expressly assert rights under the Act or even mention
the FMLA to meet his or her obligation to provide notice.”          29 C.F.R. §
825.301(b). Yet nothing in the complaint indicates that Burnette wanted leave
of any kind. The complaint asserts that RateGenius was allowing him to work


                                       5
    Case: 16-50878   Document: 00513771336     Page: 6   Date Filed: 11/23/2016



                                No. 16-50878
from home, and the complaint does not suggest Burnette or his employer in
April was seeking to end that arrangement.
      Instead, what the complaint sets out is that after RateGenius was
informed that Burnette had a specific medical diagnosis of the condition that
had led the company to allow him to work from home for four months, it asked
for proof. Burnette’s claim was only that he provided a note from the doctor
after his termination. The complaint also claims that the employer believed he
had not been truthful in describing the earlier automobile accident. Burnette
explains why he did not need to inform RateGenius of the police investigation
into possible impaired driving. He asserts that the employer’s reasons for his
termination were pretexts for denying him rights under the FMLA.
      Reviewing all of Burnette’s allegations, we find nothing beyond
speculation that the reasons RateGenius gave him for his termination were
simply masks for an FMLA violation. Speculation is insufficient. See Ashcroft
v. Iqbal, 556 U.S. 662, 678–79 (2009). Complaints “demand more than an
unadorned, the-defendant-unlawfully-harmed-me accusation.”         Id. at 678.
Asking for proof of a medical condition that would have allowed an employee
to continue to work from home, and a belief that an employee was hiding an
alternative explanation for why he had a car accident, are not on their face
suggestive of pretext. Whether RateGenius should have given Burnette more
time to provide the doctor’s note or been more understanding of the reasons he
did not reveal the police investigation are irrelevant to whether any
discrimination occurred. RateGenius was entitled to terminate him so long as
— for purposes of this complaint — there was no discrimination against him
under the FMLA.      Nothing in the complaint suggests Burnette and the
company were resolving whether he got leave, paid or unpaid. Instead, the
issue was whether Burnette’s special arrangement of working from home
would continue.
                                      6
    Case: 16-50878     Document: 00513771336     Page: 7   Date Filed: 11/23/2016



                                  No. 16-50878
      We conclude that Burnette has not alleged facts that would plausibly
support there was a causal connection between what he claims occurred and
interference with an employee’s FMLA rights. It is true that the district court’s
decision to dismiss was solely on the basis of an absence of a claim of prejudice.
We can affirm, though, “on any basis supported by the record.” Harper, 174
F.3d at 719.


   b. Retaliation
      Burnette’s retaliation claim also was dismissed as frivolous.          The
retaliation allegedly occurred when RateGenuis terminated him in May of
2014 and told him it was because he had failed to provide requested
documentation of his medical condition and had not been candid about what
happened at the time of his December 2013 accident. The district court’s
analysis was brief: “By Plaintiff’s own admission, he did not request — much
less take — FMLA leave. As a result, he could not have been retaliated against
on this basis.”
      Our previous discussion regarding the allegations of the complaint
applies here as well. The complaint does not set out any facts that plausibly
support that Burnette’s dismissal was related to a disagreement about leave
of any kind. Dismissal was proper.


   c. Permission to file an amended complaint
      Burnette alleges the district court erred by denying his motion to file an
amended complaint. Federal Rule of Civil Procedure 15 requires trial courts
to freely grant leave to amend. See Lyn-Lea Travel Corp. v. Am. Airlines, Inc.,
283 F.3d 282, 286 (5th Cir. 2002). Even so, the district court may deny leave
to amend if it has a “substantial reason” to do so. Id. Futility of amendment
is a substantial reason. Stripling v. Jordan Prod. Co., LLC, 234 F.3d 863, 872–
                                        7
    Case: 16-50878     Document: 00513771336      Page: 8   Date Filed: 11/23/2016



                                  No. 16-50878
73 (5th Cir. 2000). An amendment is futile if, after the amendment, the
complaint would still “fail to state a claim upon which relief could be granted.”
Id. at 873.
      The district court’s only stated reason for denying the amendment is that
the original complaint was frivolous under the statute governing in forma
pauperis proceedings. 28 U.S.C. § 1915(e)(2)(B)(i). That may be, but the issue
is whether the proposed amended complaint was also frivolous. We have
examined the proposed amended complaint and have noted its allegations in
our prior analysis of whether dismissal was proper. Burnette does not make
any assertions that can show a relationship between his termination and any
potential FMLA violation.       Refusing to allow the filing of an amended
complaint was not error.


   d. Dismissal with prejudice
      Finally, Burnette claims the district court should not have dismissed his
claims with prejudice without offering some explanation as to why a dismissal
with prejudice was merited. “[D]ismissals as frivolous or malicious should be
deemed to be dismissals with prejudice unless the district court specifically
dismisses without prejudice.” Marts v. Hines, 117 F.3d 1504, 1506 (5th Cir.
1997) (en banc). In other words, the assumption is that the dismissal of a
frivolous complaint under Section 1915 is one with prejudice, and the district
court is under no obligation to explain itself. Here, the district court explicitly
stated the dismissal of Burnette’s complaint was with prejudice, which
“ensure[s] that judicial resources will not be wasted and that the meritorious
claims may receive the timely attention and disposition warranted.” Id. at
1505. We see no error.
      AFFIRMED.


                                        8
