              Case: 15-11658    Date Filed: 06/13/2016   Page: 1 of 24




                                                             [DO NOT PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 15-11658
                           ________________________

                       D.C. Docket No. 7:08-cv-01035-SLB



CAROLYN SIMMONS,
as Administratrix of the Estate of Terri Franks,

                                                          Plaintiff-Appellant,

                                        versus

INDIAN RIVERS MENTAL HEALTH CENTER,

                                                          Defendant-Appellee.

                           ________________________

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

                                  (June 13, 2016)
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Before WILSON and MARTIN, Circuit Judges, and RODGERS, * District Judge.

PER CURIAM:

       Carolyn Simmons, as Administratrix of the Estate of Terri Franks, appeals

the district court’s disposition of the Family and Medical Leave Act (“FMLA”)

claims of Terri Franks. 1 See 29 U.S.C. § 2601, et seq. After being fired following

a period of medical leave, Franks filed claims of FMLA interference and retaliation

against her employer, Indian Rivers Mental Health Center (“Indian Rivers”). We

are asked to consider whether the district court properly applied issue preclusion to

bar Franks from relitigating the reason for her termination. The district court

decided that a prior state agency unemployment compensation decision should be

given preclusive effect because the agency had found that Franks had been

terminated for misconduct. We conclude on the specific facts of this case that

Alabama law would not apply issue preclusion to the agency determination.

Therefore, after careful consideration and with the benefit of oral argument, we

reverse and remand Franks’s FMLA termination claims for trial. We affirm in all

other respects.



       *
          Honorable Margaret C. Rodgers, Chief United States District Judge for the Northern
District of Florida, sitting by designation.
       1
         Sadly, Terri Franks died during the pendency of this lawsuit. Her mother, Carolyn
Simmons, was appointed as Administratrix of her estate and substituted as Plaintiff before trial.
At issue in this appeal are two summary judgment orders and an order of the district court
following a bench trial.
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                                I. BACKGROUND

A.    Job Performance

      Terri Franks, a Licensed Professional Counselor in the State of Alabama,

was hired by Indian Rivers in 1993. Indian Rivers provides mental health and

mental retardation services for individuals in several Alabama counties. In 2006,

Franks was promoted to Adult Outpatient Program Manager with responsibility for

intake assessment, probate matters, the Crisis Response Team and Substance

Abuse Services, group and individual therapy, crisis intervention, and mental

retardation services. One of her main responsibilities was to oversee, conduct and

certify patient Treatment Plan Reviews (“TPRs”). The record reflects that the TPR

process, established by the State Department of Mental Health and Medicaid,

requires a certified reviewer to review patient treatment plans on a set schedule

every 90 days for Medicaid and residential patients and once yearly for self-pay

and private insurance patients. As part of the claims repayment process, the

reviewer must certify that each treatment plan is medically necessary, that goals

remain appropriate, that the documentation accurately reflects the treatment being

provided, and that continued treatment is recommended. Franks was a certified

TPR reviewer and responsible for developing the TPR form used by Indian Rivers.

She also trained other staff members on the TPR process. At the request of her

supervisor, Clinical Director Connie Robbins, Franks created a system for


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monitoring and tracking TPR due dates to ensure that Indian Rivers was in full

compliance with all state and federal legal requirements. Thus, Franks was well

aware of the Medicaid guidelines and the TPR process, including the importance of

timely documentation and avoiding duplicate billing.

       According to Robbins, Franks failed to follow through with TPRs that were

due in August and September of 2006. Robbins provided Franks with a new chart

to follow to remedy the situation but also added more cases to her caseload. By

March and April 2007, there were numerous TPRs again waiting for Franks’s

review and signature. On April 4, 2007, Robbins met with Franks about her

performance and drafted a detailed memo outlining her poor management, stating,

“[f]or the second time now in less than a year, updating the [Adult Outreach

Program] TPRs has become a crisis,” due to Franks’s failure to follow the system.

Robbins told Franks that this had “resulted in a payback of greater than $40,000”

to Medicaid and required work by numerous other employees to remedy the

situation.2 In a responsive memo dated April 11, 2007, Franks acknowledged

having had difficulty completing all of the TPRs but explained that Indian Rivers

had “a broken system on many levels” due to human error and staffing

inadequacies. Also, Franks said she often did not receive a copy of the necessary

Medicaid reports, which interfered with her ability to review the appropriate files

       2
        The district court noted that nothing in the record confirmed a payback to Medicaid of
$40,000 attributable to Franks.
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in a timely manner. Franks offered various suggestions for how she intended to

improve her performance as a manager and stated she expected to receive the

Medicaid reports so she could effectively manage the TPRs. She also denied being

told previously that she was responsible for a Medicaid payback of $40,000 and

insisted she should not be held responsible if a payback resulted from someone

receiving a benefit without her being aware of it.

B.    FMLA Leave and Termination

      A few days after the memo, on April 15, 2007, Franks went to the

emergency room due to debilitating neck pain, and the following day she learned

she needed surgery. Franks called Robbins and Rita Harless, Human Resources

Director for Indian Rivers, to inform them of her condition and need for medical

leave through May 1, 2007.3 Harless informed Franks that she needed to submit

her FMLA paperwork, including a physician’s certification, within 10 days.

Franks picked up the paperwork on April 17 and attempted to submit some

information by email the same day, but Harless was unable to access the emails

due to computer problems. On April 26, Robbins documented that Franks had not

yet provided her or Harless with information about the surgery. On April 27, after

not being able to reach Franks by email or telephone, Harless sent her a letter,

reminding her of the need to submit the required FMLA documentation and that


      3
          Franks was out on medical leave until June 26, 2007, a total of ten weeks.
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Indian Rivers had to be able to communicate with her while she was on leave.4

She gave Franks an additional 10 days to provide the required physician’s

certification because Indian Rivers still had not received any documentation from

Franks’s physician. Harless and Franks also spoke by telephone on April 27, and a

recording of the conversation reflects that Harless told Franks that management

positions can be excluded from FMLA and that Franks was still “expected to

function and communicate in a limited capacity” while on leave “so others can

continue to keep the business going.” Franks faxed the physician’s order to Indian

Rivers that day, and her physician submitted the certification forms on April 30.

Franks’s FMLA leave was then approved retroactive to April 16.

       On April 19, Franks sent Robbins a memo in which she complained of

receiving numerous work-related telephone calls during the first few days of her

medical leave. She had documented eight such telephone calls, seven from

Robbins and one from another staff member, B. Johnson. Robbins’s testimony

confirms that for each of her seven calls to Franks, she merely left a message

concerning work-related matters, such as requesting information on the location of

treatment plans and inquiring about the location of a crisis telephone used by the


       4
          Harless stated in the April 27th letter that Franks had told her and Robbins about the
doctor’s work excuse note but still had not provided it. She also said in the letter that she had
tried to reach Franks “several times” by phone (cell and home) and stressed the importance of
management-level responsibilities, explaining, “the Organization must be able to communicate
with you during your absence and you are expected to follow policy and procedure for this and
all other work related issues.”
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crisis response team. 5 Robbins made one additional brief call to Franks, which was

recorded. In her deposition testimony, Franks named four other staff members

with whom she had spoken by telephone during her leave, but she did not state

who initiated those calls or how many calls there were. Franks informed Robbins

and Harless that she had documented the calls and would keep track of her time if

she were required to perform work for Indian Rivers during her medical leave, but

no other call documentation was presented. However, Franks’s mother, Simmons,

testified at trial that she cared for Franks after her surgery for five out of seven

days a week and said Franks “could have three to five phone calls from Indian

Rivers” per day while she was there.6 Simmons said Franks would take the calls if

she was awake and the calls were sometimes short in duration and other times

lasted from three to five minutes. Simmons also admitted that she had memory

difficulties at the time of Franks’s medical leave in 2007.7




       5
         In her EEOC complaint, Franks referred to these calls as “insignificant questions
regarding [her] job duties.”
       6
         Carolyn Simmons’s deposition testimony was not taken taken during discovery and
therefore was not part of the summary judgment record. She was allowed to testify at trial only
because Franks had died.
       7
         In particular, Simmons testified that Franks always recorded the calls, even when
Simmons was there to answer them, because Simmons had difficulty remembering messages and
names. Simmons also testified that she subsequently suffered a medical issue in 2013 that
caused her to lose some memory. The events at issue in this case occurred in 2007, and trial was
in 2015.
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       While Franks was on FMLA leave, Indian Rivers discovered numerous

unsigned TPRs and employee leave requests on her desk.8 Indian Rivers also

performed an audit of Franks’s patient files while she was out and found billing

irregularities. According to the Accounting Department, Franks had billed an

impossibly large number of TPRs between March 28 and April 4, before taking

FMLA leave, 20 of which were duplicates. As a result, Indian Rivers locked

Franks’s office and suspended her remote computer access.9 Harless informed

Franks of the job performance concerns she had discovered and of the need to

discuss the matter on Franks’s return to work.

       Indian Rivers also terminated Franks’s on-call pay while she was on leave.

Harless testified at trial that on-call pay is a yearly stipend divided into 26 pay

periods and that Franks continued to receive on-call pay as long as she was

available to work the on-call rotation at any time during a particular pay period. 10

Harless explained that Franks’s on-call pay was removed in May 2007 after the




       8
        Franks explained in her affidavit that the work on her desk was in progress when she
was unexpectedly placed on medical leave.
       9
        In a letter dated May 29, 2007, Harless informed Franks of these concerns and
explained, “to preserve all relevant records and for your protection, we have suspended anyone
from having access to your computer and office and any remote access to our records.”
       10
          Franks stated in her affidavit that “it had never been the practice of Indian Rivers to
stop the on-call salary of any team member on leave before it happened to me during FMLA
leave,” and instead, the team members would simply cover for one another by rearranging their
on-call dates. At trial, however, the district court excluded this statement, finding that Franks did
not have personal knowledge regarding Indian Rivers’ on-call pay policy.
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records showed she had been on FMLA leave for the entire pay period, which took

her out of the on-call rotation.

      Franks’s paid leave time was exhausted on June 8, 2007. She remained on

unpaid FMLA leave through August 25, 2007. On the day Franks returned to

work, she met with Executive Director Jim Moore to discuss the job performance

issues Indian Rivers had discovered during her leave. Moore discussed the

problems with Franks, and Franks attempted to provide explanations for the

irregularities noted in her performance, pointing out, for instance, that the billing

logs were not in her handwriting. Moore nonetheless terminated Franks’s

employment that day, notwithstanding Indian Rivers’ progressive disciplinary

policy.

C.    Unemployment Compensation Proceedings

      On July 1, 2007, Franks applied for unemployment compensation,

identifying the reason given for her discharge as “misconduct.” When the

Alabama Department of Industrial Relations (“ADIR”) Claims Examiner notified

Indian Rivers of the claim, it responded with a brief, hand-written and unsworn

explanation, stating that Franks was terminated for, “Repeated failure to complete

assigned objective; code of conduct violation – No. 2; submission of claims that

represent that services all or part of which were not performed.” Based on this

unsworn response, the Claims Examiner determined that Franks was disqualified


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from receiving benefits, citing Ala. Code § 25-4-78(3)(a) (1975), which provides

that a claimant is disqualified from receiving benefits if discharged for a dishonest

or criminal act in connection with work.

       Franks appealed and requested a hearing, which was scheduled for August

24. However, Franks had secured new employment on July 30 and did not attend

the hearing. Indian Rivers appeared by telephone but presented no testimony or

other evidence. The Hearing Officer determined that “the nonappearance of the

appellant and the absence of additional evidence require[d] the Administrative

Hearing Officer to make a decision based upon the evidence contained in the file,

which consists of prior statements not under oath.” The Hearing Officer then

concluded that there was no basis for any change in the Claims Examiner’s

determination. Franks did not appeal the decision administratively or seek judicial

review in state court.

D.     District Court Proceedings

       After filing a charge of FMLA discrimination and retaliation with the Equal

Employment Opportunity Commission (EEOC), Franks filed this FMLA suit. 11

Indian Rivers moved for summary judgment, which the district court granted in

part on some of the FMLA interference claims. The district court found no FMLA


       11
           Franks also alleged a violation of HIPAA and state law claims of invasion of privacy,
negligent hiring, training, supervision, and retention, and intentional infliction of emotional
distress, none of which is at issue in this appeal.
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interference based on the removal of the on-call crisis response team pay because

Franks was not available to take the crisis calls, likening the pay to a bonus based

on production goals. The district court also found that the work-related telephone

calls Franks received from Indian Rivers’ staff during her leave did not constitute

interference by themselves, but the court found there was a question of fact as to

whether Franks was required to work during her FMLA leave, which precluded

summary judgment on the interference claim. The court also found questions of

fact as to pretext on Franks’s retaliation claim related to her termination, and the

case was set for trial. 12

       Shortly before trial, Indian Rivers raised the argument that Franks’s

retaliation claim was barred by issue preclusion in light of the ADIR’s prior

determination that she had been fired for misconduct.13 The district court agreed,

finding that the Hearing Officer necessarily determined that Franks was terminated

for dishonest conduct at work. The district court found it significant that the

Hearing Officer did not declare a default and instead based the decision on “the

evidence in the file.” The district court concluded that the ADIR had made a



       12
         Regarding her termination, Franks claimed both FMLA interference and retaliation, but
Indian Rivers moved for summary judgment only on the retaliation claim.
       13
          The issue had been raised initially in Indian Rivers’ answer but not in its summary
judgment motion. When Indian Rivers raised the issue in its proposed pretrial order, the district
court sua sponte moved for summary judgment on the issue and gave Franks an opportunity to
respond.
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necessary determination on the merits regarding the reason for the termination and

thus precluded Franks from relitigating the issue under the FMLA.

      The case proceeded to a bench trial on Franks’s remaining interference claim

that Indian Rivers had required her to perform work during her FMLA leave. The

district court ultimately decided Indian Rivers did not interfere with Franks’s

FMLA leave because there was no evidence that Franks had performed work

during her leave. The court found that the work-related telephone contacts were

“brief and limited to reasonable inquiries ‘about the location of files or passing

along institutional status or knowledge’ to those who would cover Franks’s

responsibilities and duties during her absence.” Additionally, the district court

refused to consider claims based on the removal of on-call pay, misinformation

about the time allowed for providing a doctor’s certification, and Franks being told

she had to be available to answer questions, which the court found were not within

the scope of the Complaint; alternatively, the court concluded that even

considering these facts, there was no FMLA interference. Ultimately, the district

court entered final judgment in favor of Indian Rivers, and Simmons appealed.

                              II. Standards of Review

      We review a grant of summary judgment de novo, applying the same

standards as the district court. See White v. Beltram Edge Tool Supply, Inc., 789

F.3d 1188, 1193 (11th Cir. 2015). “Summary judgment is appropriate if ‘the


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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.’” Id. (quoting Fed. R. Civ. P.

56(a)); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S. Ct. 2548,

2552, 91 L.Ed.2d 265 (1986). We also apply de novo review to the district court’s

interpretation of state law, including whether to apply the principles of collateral

estoppel or issue preclusion. See Tampa Bay Water v. HDR Eng’g, Inc., 731 F.3d

1171, 1177 (11th Cir. 2013). “After a bench trial, we review the district court’s

conclusions of law de novo and the district court’s factual findings for clear error.”

Tartell v. S. Fla. Sinus & Allergy Ctr., Inc., 790 F.3d 1253, 1257 (11th Cir. 2015)

(quoting Proudfoot Consulting Co. v. Gordon, 576 F.3d 1223, 1230 (11th Cir.

2009)).

                                   III. Discussion

A.    Issue Preclusion

      Simmons argues that the district court erred by applying issue preclusion to

bar Franks’s FMLA retaliation claim on the facts of this case. Alabama law

governs this issue. See Univ. of Tenn. v. Elliott, 478 U.S. 788, 799, 106 S. Ct.

3220, 3226, 92 L.Ed.2d 635 (1986) (stating that when a state agency acts in a

judicial capacity, federal courts “give[ ] the agency’s factfinding the same

preclusive effect to which it would be entitled in the State’s courts.”). In Alabama,

issue preclusion applies to a state administrative agency’s decision when: “(1)


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there is identity of the parties or their privies; (2) there is identity of issues; (3) the

parties had an adequate opportunity to litigate the issues in the administrative

proceeding; (4) the issues to be estopped were actually litigated and determined in

the administrative proceeding; and (5) the findings on the issues to be estopped

were necessary to the administrative decision.” Wal–Mart Stores, Inc. v.

Smitherman, 743 So. 2d 442, 445 (Ala.1999) (quoting Ex parte Smith, 683 So. 2d

431, 433 (Ala. 1996)), overruled on other grounds by Ex Parte Rogers, 68 So. 3d

773 (Ala. 2010). In the past, courts in Alabama have given preclusive effect to a

prior ADIR finding that an employee was discharged for misconduct. See Wal–

Mart Stores, Inc. v. Hepp, 882 So. 2d 329, 332-35 (Ala. 2003), overruled on other

grounds by Ex parte Rogers, 68 So. 3d 773 (Ala. 2010); 14 Smitherman, 743 So. 2d

at 445-46. Notwithstanding these cases, we conclude that Alabama law compels a

different result on the facts of this case.

       Here, there is no question regarding identity of parties and identity of issues.

Indeed, the parties are the same. Further, the Hearing Officer identified the issue

before the ADIR as: “Whether the claimant was discharged or removed from work

for a dishonest or criminal act committed in connection with his work . . . .” See

Ala. Code § 25-4-78(3)(a). And for FMLA purposes, “an employer can deny

       14
           In Rogers, the Alabama Supreme Court ruled that the employer has the burden to prove
that a claimant is disqualified from receiving unemployment compensation benefits on the basis
of misconduct, overruling Hepp and Smitherman to the extent they held otherwise. 68 So. 3d at
781.
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reinstatement ‘if it can demonstrate that it would have discharged the employee

had [s]he not been on FMLA leave.’” Martin v. Brevard Cty. Pub. Sch., 543 F.3d

1261, 1267 (11th Cir. 2008) (quoting Strickland v. Water Works and Sewer Bd. of

City of Birmingham, 239 F.3d 1199, 1208 (11th Cir. 2001)). Thus, the reason for

Franks’s termination was at issue in both proceedings. See Smitherman, 743 So. 2d

at 446 (finding identity of issues because the reason for the discharge was at issue

in the unemployment determination and also in the subsequent suit for retaliation).

      We find it unnecessary in this case to consider the third factor of whether

there was an adequate opportunity to litigate the issue in the administrative

proceeding because, even assuming there was, see Smitherman, 743 So. 2d at 446-

47, the remaining factors are not satisfied. The fourth and fifth factors, requiring

that the issue was “actually litigated” and that the findings were “necessary” to the

administrative decision, are intertwined in this case because Simmons argues the

ADIR decision was effectively a default, and thus, neither factor is satisfied. We

agree. The district court concluded instead that the Hearing Officer necessarily

determined, after considering and examining “the evidence” contained in the file,

that Indian Rivers had terminated Franks for dishonest conduct. The problem with

this conclusion, however, is that the file contained no “evidence.” The Hearing

Officer’s decision acknowledges that the record contained only unsworn




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statements.15 A federal court gives a state agency determination preclusive effect

only when the agency is “acting in a judicial capacity.” Elliott, 478 U.S. at 799,

106 S. Ct. at 3226 (quoting United States v. Utah Constr. & Mining Co., 384 U.S.

394, 422, 86 S. Ct. 1545, 1560, 16 L.Ed.2d 642 (1966)). Because the record

contained only unsworn statements, there was no competent evidence from which

the Hearing Officer or Claims Examiner could make a merits determination in a

judicial capacity, and thus, we cannot find that the issue was “actually litigated.”16

See Malfatti v. Bank of America, N.A., 99 So. 3d 1221, 1225-26 (Ala. 2012)

(explaining that a default is not given preclusive effect because nothing is “actually

litigated”). Additionally, Franks failed to appear at the hearing and had no

incentive to litigate the issue given that she had obtained employment less than a

month after her termination and prior to the agency hearing. Pursuant to



       15
          In both Hepp and Smitherman, where issue preclusion was applied, a hearing had been
held in which both parties participated and presented testimony or other evidence to the agency.
The Alabama Administrative Code contemplates that a hearing will involve the presentation of
relevant evidence and testimony given under oath. See Ala. Admin. Code r. 480-1-4-.04. But
here, there was none.
       16
           We reject Indian Rivers’ contention that the Hearing Officer’s determination was a
merits decision on an unopposed record comparable to Smith v. Lawyers Sur. Corp., 624 So. 2d
526, 527-28 (Ala. 1993). In Smith, contrary to the ADIR proceedings at issue here, there was a
competent and undisputed summary judgment record that included affidavit testimony. The
instant case is more akin to a default judgment based on pleadings alone, which is not given
preclusive effect under either Alabama or federal law because nothing was “actually litigated.”
See, e.g., Bush v. Balfour Beatty Bahamas, Ltd., 62 F.3d 1319, 1323 (11th Cir. 1995)
(“Ordinarily, a default judgment will not support the application of collateral estoppel because
‘[i]n the case of a judgment entered by confession, consent, or default, none of the issues is
actually litigated.’ Restatement (Second) of Judgments § 27 cmt. e (1982)” (alteration in
original)); Malfatti, 99 So. 3d at 1226 (quoting Bush, 62 F.3d at 1323).
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administrative regulations, where a claimant fails to appear after having received

notice of the hearing, the Hearing Officer has discretion to make a decision on the

merits or declare a default. See Ala. Admin. Code r. 480-1-4-.10(2). Because the

hearing officer had the option to declare a default, and Indian Rivers presented no

evidence, it cannot be said that a decision on the merits was “necessary.”

Accordingly, for this reason as well, we find that the district court erred in

applying issue preclusion, and the case must be remanded for a trial on the claims

related to Franks’s termination.

B.    FMLA Interference

      Simmons also appeals the district court’s findings that Indian Rivers did not

interfere with Franks’s FMLA leave by making telephone calls to her during her

FMLA leave and by removing her on-call pay. It is “unlawful for any employer to

interfere with, restrain, or deny the exercise of or the attempt to exercise, any right

provided” by the FMLA. 29 U.S.C. § 2615(a)(1). To prove a claim of FMLA

interference, a plaintiff must demonstrate, by a preponderance of the evidence, the

denial of an FMLA benefit to which she was entitled “and that she ‘has been

prejudiced by the violation in some way.’” Evans v. Books-A-Million, 762 F.3d

1288, 1295 (11th Cir. 2014) (quoting Ragsdale v. Wolverine World Wide, Inc., 535

U.S. 81, 89, 122 S. Ct. 1155, 152 L.Ed.2d 167 (2002)). A plaintiff is not required

to show that the employer acted with an intent to deny the FMLA benefit but only


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that the plaintiff was “entitled to the benefit denied.” See Strickland, 239 F.3d at

1207.

        In reviewing the district court’s findings, we construe the facts in the light

most favorable to the prevailing party and give “substantial deference to the

factfinder’s credibility determinations, both explicit and implicit.” United States v.

Lewis, 674 F.3d 1298, 1303 (11th Cir. 2012). We will overturn the district court’s

findings of fact only for clear error, and we “must give due regard to the trial

court’s opportunity to judge the witnesses’ credibility.” Fed. R. Civ. P. 52(a)(6).

The district court’s factfinding “is ‘clearly erroneous’ when although there is

evidence to support it, the reviewing court on the entire evidence is left with the

definite and firm conviction that a mistake has been committed.” Anderson v. City

of Bessemer City, 470 U.S. 564, 573, 105 S. Ct. 1504, 1511, 84 L.Ed.2d 518

(1985) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68

S. Ct. 525, 542, 92 L.Ed. 746 (1948)); see also Morrissette–Brown v. Mobile

Infirmary Med. Ctr., 506 F.3d 1317, 1319 (11th Cir. 2007).

        1.    Telephone Calls

        Simmons argues that the district court erred in concluding that the telephone

calls from staff members of Indian Rivers did not rise to the level of interference,

insisting that by having to receive and respond to calls Franks was required to

work without compensation during her leave. An employer violates the FMLA by


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requiring an employee to perform work during FMLA leave. See Evans, 762 F.3d

at 1297 (noting that even if an employee is paid for work during FMLA leave, “if

an employer coerces an employee to work during her intended FMLA leave period

and, subsequently, reassigns her based upon her allegedly poor performance during

that period, the employee may well have been harmed by the employer’s FMLA

violation”); Arban v. West Pub’g Corp., 345 F.3d 390, 405 (6th Cir. 2003)

(recognizing that terminating an employee’s employment for refusing to perform a

work-related task while on medical leave amounts to interference with FMLA

rights). Similarly, an employee who takes FMLA leave cannot be required to

remain “on call” to the employer throughout the leave period. See, e.g., Sherman

v. AI/FOCS, Inc., 113 F. Supp. 2d 65, 70-71 (D. Mass. 2000) (noting it is FMLA

interference to condition leave on the willingness to remain “on call” or to fire an

employee for not responding to telephone calls or performing work while on

FMLA leave).

      The district court expressly credited Robbins’s testimony concerning the

number, length, and content of the telephone calls and found that the calls were

occasional, brief, limited in scope, and did not require Franks to perform work at

home. Simmons criticizes the district court for failing to credit her testimony that

Franks “could have three to five calls” per day from Indian Rivers while she was

caring for Franks, which meant that Franks could have received up to 25 calls per


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week after her surgery. We accord “substantial deference” to both explicit and

implicit credibility determinations of the factfinder. Lewis, 674 F.3d at 1303. Our

“function is not to decide factual issues de novo;” instead, we must affirm “[i]f the

district court’s account of the evidence is plausible in light of the record viewed in

its entirety,” even if it is possible to weigh the evidence differently. Anderson, 470

U.S. at 573-74, 105 S. Ct. at 1511. In other words, “[w]here there are two

permissible views of the evidence, the factfinder’s choice between them cannot be

clearly erroneous.” Id.

      In this case, we are not left with a “definite and firm conviction that a

mistake has been committed,” id. at 573, 105 S. Ct. at 1511 (quoting United States

Gypsum Co., 333 U.S. at 395, 68 S. Ct. at 542), and thus, the district court’s

implicit rejection of Simmons’s testimony is not clear error. Simmons admitted

she had memory problems, and no other testimony supported a finding that Franks

received 25 calls per week from staff. Moreover, the FMLA does not create an

absolute right to be left alone. See e.g., O’Donnell v. Passport Health Comms.,

Inc., 561 F. App’x 212, 218 (3d Cir. 2014) (unpublished); Callison v. City of

Philadelphia, 430 F.3d 117, 121 (3d Cir. 2005) (“Finally, contrary to Callison's

assertion, there is no right in the FMLA to be ‘left alone.’”). On the facts of this

case, the district court did not err in finding that interference had not been

established because Franks received only occasional and brief telephone calls of a


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limited nature, she was not required to perform work during her FMLA leave, she

received all the leave she was due, and she suffered no consequences for refusing

to take or respond to occasional telephone calls while she was on leave.17

       2.     Removal of On-Call Pay

       Simmons also argues that it was FMLA interference to remove Franks’s on-

call pay while she was on FMLA leave. In particular, Simmons argues that the

district court erred in granting summary judgment on this claim because Franks’s

affidavit created a question of fact by showing it was not Indian Rivers’ policy to

stop the on-call salary of a team member on leave. She also argues the court erred

by finding that the on-call pay was a performance bonus, as opposed to a yearly

stipend, and by concluding at trial that this claim was beyond the scope of the

Complaint.

       We may affirm the district court’s judgment or a grant of summary judgment

“on any basis supported by the record.” Wilchombe v. TeeVee Toons, Inc., 555

F.3d 949, 960 (11th Cir. 2009) (quoting Burton v. Tampa Hous. Auth., 271 F.3d

1274, 1277 (11th Cir. 2001)); Koziara v. City of Casselberry, 392 F.3d 1302, 1306

n.2 (11th Cir. 2004). Despite the grant of summary judgment on this claim and the



       17
          Although the district court noted that some federal courts have recognized a
“professional courtesy” exception that permits occasional work-related contact during FMLA
leave, see, e.g., Reilly v. Revlon, Inc., 620 F. Supp. 2d 524, 537 (S.D.N.Y. 2009); Kesler v.
Barris, Scott, Denn & Driker, PLLC, 482 F. Supp. 2d 886, 910-11 (E.D. Mich. 2007), we find it
unnecessary to reach that issue or to endorse such a blanket exception in this case.
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conclusion that the claim was beyond the scope of the Complaint, the district court

effectively reconsidered the issue at trial and ruled alternatively that the facts did

not show FMLA interference. At trial, the district court found Franks’s affidavit

testimony regarding Indian Rivers’ on-call pay policy inadmissible for lack of

personal knowledge and instead allowed Harless, who had personal knowledge of

the policy, to testify to it. Harless explained not only that the crisis response pay

was a stipend distributed throughout the year but also that a crisis response team

member would continue to receive the pay only for as long as the member was

available to work the on-call rotation at some time during a particular pay period.

She testified that Franks’s on-call pay was removed in May 2007 after pay records

reflected that Franks had been on FMLA leave for the entire pay period, which

took her out of the on-call rotation, and thus, she was not entitled to the pay. On

this record, we agree with the district court’s alternative conclusion that the

removal of Franks’s on-call pay did not amount to FMLA interference.

      3.     Remaining FMLA Interference Claims

      Simmons also argues the district court erred by limiting the scope of

Franks’s FMLA interference claim to the factual averments of the Complaint. The

district court noted that at trial Simmons attempted to expand the Complaint to

include a claim that Franks was misinformed of the deadline for providing FMLA

certification and was told that management employees must answer calls while on


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FMLA leave. The district court found these claims beyond the scope of the

Complaint and concluded alternatively that this evidence did not show interference

with her right to medical leave. We find no error. An FMLA plaintiff cannot raise

a new claim at trial. See generally White, 789 F.3d at 1199-1200 (precluding a

plaintiff from asserting a new claim or theory of liability at the summary judgment

stage without amending the complaint where the complaint did not give the

employer notice of the claim). Franks’s Complaint did not articulate a claim of

interference for having been misinformed about FMLA certification requirements

or her FMLA rights, and thus the district court correctly rejected the claim. In any

event, even considering these facts, they do not amount to FMLA interference.

The record shows that Franks was given additional time to provide her required

medical certification, her entire leave request was approved retroactively to the

first day she was on medical leave, and there was no evidence that any

misinformation resulted in Franks being required to perform work during her

FMLA leave.

                               III. CONCLUSION

      We reverse and remand for trial on the FMLA interference and retaliation

claims based on Franks’s termination, consistent with this opinion. In all other

respects, we affirm.




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    AFFIRMED IN PART AND REVERSED AND REMANDED IN

PART.




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