Lubke v. City of Arlington

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 30, 2006
_______________________
Charles R. Fulbruge III
No. 04-11213 Clerk
_______________________

KIM W. LUBKE,

Plaintiff-Appellee,

versus

CITY OF ARLINGTON, et. al.

Defendants,

CITY OF ARLINGTON,

Defendant-Appellant.

On Appeal from the United States District Court
for the Northern District of Texas
No. 4:02-CV-188-Y

Before JONES, Chief Judge, and DEMOSS and CLEMENT, Circuit Judges.

EDITH H. JONES, Chief Judge:

What began as a routine disciplinary effort to ensure

work attendance during the run-up to “Y2K” ended in the discharge

of a 22-year veteran of the City of Arlington, Texas, Fire

Department. He filed suit challenging the discharge, inter alia,

as a violation of the Family and Medical Leave Act, 29 U.S.C. 2601

et seq.(“FMLA”). The City now appeals from a substantial adverse

jury award. We AFFIRM liability but REVERSE and REMAND the damage

award for further proceedings.

I. BACKGROUND
 Kim Lubke was a Battalion Chief in the City of

Arlington’s Fire Department in charge of eight fire stations and

forty to fifty employees.

In preparation for the year 2000 (“Y2K”), the City’s

critical departments, including the Fire Department, developed

contingency plans in the event widespread electronic problems

should arise. The Y2K plan was in effect from 6 p.m. December 31,

1999, through 7 a.m. January 2, 2000. To ensure full staffing

during that weekend, the City required all Fire Department

employees to report to a designated Battalion Chief by dawn each

day before reporting for duty. During the pendency of the Y2K

plan, they were not permitted to call the unmanned answering

machines (“call boxes”) to report unscheduled leave. Additionally,

the City restricted its normal, more informal sick leave policies,

and instead required a doctor’s written substantiation of any

absence.

Lubke was scheduled to work from December 31, 1999,

through January 1, 2000. On December 30, 1999, at 8:11 p.m., Lubke

telephoned a call box and left a message stating that he would not

be at work during the Y2K weekend because he needed to stay home to

care for his sick wife, who also was employed by the City.

Throughout December, Lubke’s wife was ill with flu symptoms and

back pain. Lubke claimed at trial that his wife’s back pain had

been a chronic, periodically occurring condition. He also

2
testified that she was incapacitated from December 30, 1999,

through the morning of January 3, 2000.

The Lubkes both returned to work on January 3. Lubke

submitted a standard leave form, on which he wrote: “Wife was ill

with severe bronchitis/possible pneumonia. During coughing spells

had strained back muscles and could not get out of bed. Needed my

assistance.” He attached to the leave form an examination form

from a doctor dated December 22, 1999, as well as receipts for

three prescriptions for Mrs. Lubke, one of which was filled

December 22, and the other two of which were filled on December 29.

Lubke’s paid leave was disapproved for insufficient substantiation.

Lubke’s wife, however, submitted identical documentation to the

City, and her leave was approved.

Even before Lubke submitted his leave form, Assistant

Fire Chief Larry Brawner lodged a personnel complaint against Lubke

for his unscheduled Y2K leave. Lubke acknowledged receipt of the

complaint. He “repeatedly” asked Brawner what type of substantia-

tion would be sufficient, but Brawner refused to answer. On

January 15, Lubke asked Human Resources for clarification on the

substantiation issue, but was referred back to Brawner, who again

refused to answer.

Further details of the extensive grievance procedures

that ensued are unnecessary to recount. Viewed in the light most

favorable to the jury verdict, the dispute initially concerned

whether two days of sick leave should be treated as paid or unpaid.

3
From January to mid-April, Lubke was never clearly informed of what

medical substantiation of his wife’s condition was required, nor

was he warned that he could be fired for not providing it.

On April 14, 2000, Brawner notified Lubke of his

impending discharge for dereliction of duty, unauthorized absence,

and insubordination. To no avail, Lubke asked for two additional

days to obtain a report from his wife’s doctors. He was discharged

effective April 19. A week later, Mrs. Lubke submitted a letter

from Dr. Wilkerson, her treating physician, dated December 22,

1999, which addressed her condition and explained why Lubke had to

be present to care for his wife. This was followed by another

letter from Dr. Pulliam, the Lubkes’ regular doctor, which also

addressed Mrs. Lubke’s condition, and confirmed her husband’s

decision.

In early May, Lubke appealed his discharge to Fire Chief

Robin Paulsgrove. Chief Paulsgrove acknowledged that the doctors’

letters provided adequate medical documentation and substantiation,

but he considered them untimely and upheld the discharge.

Lubke sued the City, Paulsgrove, and Brawner on FMLA and

Fair Labor Standards Act (“FLSA”) claims in state court. After the

City removed to federal court, the district court granted the City

summary judgment on the FLSA claim and, subsequently, dismissed the

individual defendants, against whom the FMLA offers no relief. A

ten-day jury trial resulted in a verdict for Lubke on his FMLA

claim against the City. The judgment awarded Lubke damages for

4
lost wages and benefits ($395,394), liquidated damages ($300,000),

attorney fees ($305,292), and court costs ($9,576).1

II. DISCUSSION

The City argues that the district court erred in

1) denying the City’s JML regarding Lubke’s failure to present

legally sufficient evidence that his wife had an FMLA “serious

health condition” on the days in question; 2) denying the City’s

JML motion and granting Lubke JML regarding medical certification

under the FMLA; 3) excluding evidence of Lubke’s prior disciplinary

problems; 4) determining the measure of damages for Lubke’s lost

insurance benefits; and 5) not offsetting the amount of Lubke’s

retirement plan payout from his award of back pay. We address each

issue in turn.

A. Serious health condition

The logical first question for analysis is whether

Lubke’s leave qualified for FMLA protection. FMLA assures unpaid

leave for family members who must care for relatives with a

“serious health condition.” The City argues that the district

court erred in denying the City’s JML regarding Lubke’s failure to

present legally sufficient evidence that his wife had an FMLA

“serious health condition” over the Y2K weekend.

1
An employer that violates the FMLA may be liable for lost wages and
benefits, liquidated damages, attorney fees, and court costs. 29 U.S.C.
§ 2617(a).

5
 This court reviews de novo a district court’s ruling on

a JML, applying the same legal standard used by the district court.

Coffel v. Stryker Corp., 284 F.3d 625, 630 (5th Cir. 2002). A JML

should only be granted if “a party has been fully heard by the jury

on a given issue, and there is no legally sufficient evidentiary

basis for a reasonable jury to have found for that party with

respect to that issue.” Flowers v. S. Reg’l Physician Servs.,

Inc., 247 F.3d 229, 235 (5th Cir. 2001). Although our review is de

novo, the “standard of review with respect to a jury verdict is

especially deferential.” Brown v. Bryan County, Okla., 219 F.3d

450, 456 (5th Cir. 2000).

The FMLA defines a “serious health condition” as “an

illness, injury, impairment, or physical or mental condition that

involves . . . continuing treatment by a health care provider.”

29 U.S.C. § 2611(11). Department of Labor (“DOL”) regulations go

into elaborate detail, setting out five types of conditions that

can qualify as continuing treatment by a health care provider.

29 C.F.R. § 825.114(a)(2). Only one of these arguably applies in

the instant case:

(2) Continuing treatment by a health care provider. A
serious health condition involving continuing treatment
by a health care provider includes any one or more of the
following:

* * *

(iii) Any period of incapacity or treat-
ment for such incapacity due to a chronic
serious health condition. A chronic serious
health condition is one which:

6
 (A) Requires periodic visits for
treatment by a health care provider,
or by a nurse or physician's
assistant under direct supervision
of a health care provider;

(B) Continues over an extended
period of time (including recurring
episodes of a single underlying
condition); and

(C) May cause episodic rather than
a continuing period of incapacity
(e.g., asthma, diabetes, epilepsy,
etc.).

29 C.F.R. § 825.114(a)(2)(iii).2

Lubke presented extensive evidence at trial regarding his

wife’s “serious health condition.” Both he and his wife testified

about her chronic back problems, as did Mrs. Lubke’s coworker and

supervisor. Mrs. Lubke’s physician, Dr. Pulliam, testified that

she experienced chronic but episodic back problems for which he

prescribed medications. Medical records introduced at trial

corroborated that Dr. Pulliam examined and treated Mrs. Lubke’s

back condition for nearly a decade, during which he prescribed

forty medications, including muscle relaxers, anti-inflammatories,

sleep medication, and narcotic pain medications. This evidence was

legally sufficient for a jury to find a chronic condition under

§ 825.114(a)(2)(iii).

2
Contrary to Lubke’s argument, the evidence does not support a finding
that Mrs. Lubke has a “serious health condition” as defined under
§ 825.114(a)(2)(i).

7
 The City objects that because discovery violations

resulted in the exclusion from trial of Dr. Pulliam’s formal expert

opinion, Lubke’s evidence was insufficient as a matter of law.

While we agree that the existence of an FMLA-covered serious health

condition will often necessitate confirmation by means of an expert

medical diagnosis, the testimony just mentioned allowed the jury

reasonably to infer that Mrs. Lubke indeed suffered from recurring,

chronic back pain as defined by this regulation. The City misreads

Stiefel v. Allied Domecq Spirits & Wine, 184 F. Supp. 2d 886 (W.D.

Ark. 2002), the only case it cites as requiring expert medical

opinion to prove a “serious health condition” under the FMLA. In

Stiefel, the plaintiff’s condition and symptoms in July —

hepatitis, virus, or pelvic pain — were not the same symptoms

produced by a miscarriage ten months earlier. Id. at 890. As a

result, the court held that the plaintiff’s conclusory belief of a

connection could not alone justify the inference that her July

absences were connected to the previous miscarriage. Id. at 891.

Stiefel, like the district court here, applied ordinary evidentiary

rules to reach an ordinary, sensible conclusion regarding

admissibility.

The City also errs in suggesting that expert testimony

was necessary to demonstrate Mrs. Lubke’s incapacity. See Rankin

v. Seagate Techs., Inc., 246 F.3d at 1145, 1148 (8th Cir. 2001)

(plaintiff’s affidavit that she was too sick to work, her testimony

of her conversations with nurses about her condition, and her

8
medical records were “sufficient to create a genuine issue of

material fact regarding her incapacity”); Marchisheck v. San Mateo

County, 199 F.3d 1068, 1074 (9th Cir. 1999) (plaintiff’s declara-

tion that “I just did not and could not do anything for four or

five days” created a disputed fact issue on incapacity).

Finally, the City argues that, even if lay opinion may

suffice to demonstrate a “serious medical condition,” the evidence

produced was not enough to demonstrate that Mrs. Lubke’s back pain

condition was periodic under 29 C.F.R. § 825.114 (a)(2)(iii)(A)

(requiring periodic visits to a health care provider). The City

contends that “periodic” necessarily means treatment at regular

intervals, and one dictionary defines it to mean “[h]aving or

marked by repeated cycles,” “[h]appening or appearing at regular

intervals,” or “recurring or reappearing from time to time.”

AMERICAN HERITAGE COLLEGE DICTIONARY 1035 (4th ed. 2002). But synonyms

include sporadic, intermittent, occasional, and fitful, all of

which fit within DOL’s regulation. The City’s definition would

lead to absurd results if the regulation required doctor visits

only at precise intervals not coinciding with the flare-ups of a

chronic condition. Clearly, the DOL intended that periodic visits

could correlate with the anticipated episodic nature of chronic

conditions. See 29 C.F.R. § 825.114 (a)(2)(iii)(A) and (C).

9
 The jury had legally sufficient evidence to conclude that

Lubke’s wife experienced a “serious health condition” for which

FMLA leave is allowed.3

B. Medical Certification

The City contends that Lubke’s leave was not protected by

the FMLA because Lubke failed to provide the timely adequate

medical certification to support his claimed leave. The City

argues that, by denying the City’s JML and granting Lubke’s JML

regarding medical certification under the FMLA, the district court

effectively “disallowed altogether the City’s evidence and

arguments on [FMLA] medical certification.” This is essentially

correct. The court ruled that, as a matter of law, the City

“failed to properly request or require Mr. Lubke to provide medical

certification as required under FMLA[‘s]” regulations. See 12 R.7.

Accordingly, the court concluded, Lubke “was not required to

provide medical certification.” See id.

Under the FMLA, “[a]n employer may require that a request

for leave . . . be supported by a certification issued by the

health care provider of the eligible employee or . . . spouse . . .

[and] [t]he employee shall provide, in a timely manner, a copy of

such certification to the employer.” 29 U.S.C. § 2613(a). DOL

3
At trial, the parties vigorously disputed whether Lubke furnished
appropriate notice to the City of FMLA-qualifying leave. See Willis v. Coca-Cola
Enters, Inc., 445 F.3d 413, 418-19 (5th Cir. 2006) (“FMLA and the relevant
caselaw from our sister circuits require, even in the case of involuntary leave,
that the employee provide sufficient notice to an employer of the need to take
FMLA leave ...”). The jury found in Lubke’s favor, and the City has not
challenged the finding in this court.

10
regulations amplify when and how employers may require certifi-

cation. Each time an employer demands certification, a regulation

requires, in pertinent part:

• That the employer request medical certification in
writing. 29 C.F.R. § 825.301(b)(1).

• In the case of unforeseeable leave, that the
request be made, “[i]n most cases . . . within two
business days after the leave commences. The
employer may request certification at some later
date if the employer later has reason to question
the appropriateness of the leave or its duration.”
29 C.F.R. § 825.305(c).

• That the request for certification advise the
employee of “the specific expectations and
obligations of the employee and explain[ ] any
[anticipated] consequences of a failure to meet
these obligations.” 29 C.F.R. § § 825.301(b)(1),
305(d).4

• That the employer allow the employee at least 15
days to respond to the medical certification
request. 29 C.F.R. § 825.305(b).

• In case the original certification is insufficient
or incomplete, that the employer “provide the
employee a reasonable opportunity to cure any such
deficiency.” 29 C.F.R. § 825.305(d).

The regulation finally provides that, “[i]f an employer

fails to provide notice in accordance with the provisions of this

section, the employer may not take action against an employee for

failure to comply with any provision required to be set forth in

the notice.” 29 C.F.R. § 825.301(f). The district court ulti-

4
Section 825.301 merely says “explain any consequences” but § 825.305
clarifies that the employer need only “advise . . . of the anticipated
consequences.”

11
mately5 applied this “sanction” subsection to prevent the City,

which failed to comply with several of the regulation’s technical

notice aspects, from contending that Lubke failed to submit timely

medical substantiation for FMLA leave. Assuming, without deciding,

that the district court should not have applied § 825.301(f) as a

sanction for technical noncompliance with the certification rule,

its error was, under these circumstances, harmless. Some

explanation is required. In Ragsdale v. Wolverine World Wide,

535 U.S. 81, 122 S. Ct. 1155 (2002), the Supreme Court addressed

29 C.F.R. § 825.700(a), which required an employer who had not told

an employee that her leave was being counted toward the FMLA’s

twelve-week limit to toll the limit until the employee was so

advised. Ragsdale, 535 U.S. at 84, 122 S. Ct. at 1158-59. The

Court acknowledged that under Chevron v. Natural Resources Defense

Council, 467 U.S. 837, 844, 104 S. Ct. 2778, 2782 (1984), courts

must give considerable weight to the Secretary’s judgment in

implementing DOL regulations and should not overturn them unless

“arbitary, capricious, or manifestly contrary to the statute.”

Ragsdale, 535 U.S. at 86, 122 S. Ct. at 1160. Nevertheless, the

Court held that the “challenged regulation is invalid because it

alters the FMLA’s cause of action in a fundamental way: It

relieves employees of the burden of proving any real impairment of

5
In a pretrial summary judgment order, the court found that the
sufficiency of the City’s request for and Lubke’s response regarding medical
substantiation raised fact issues under the statute. The court changed its mind,
however, during a pretrial hearing.

12
their rights and resulting prejudice.” Id. at 90, 122 S. Ct. at

1162. As a result, the regulation impermissibly created broader

substantive rights than those permitted by the statute. See id. at

90-91, 122 S. Ct. at 1162. FMLA’s remedial scheme requires an

employee to prove prejudice as a result of the employer’s lapse;

the employee may not expand the statute’s coverage as a penalty for

an employer’s technical compliance shortcoming.

Ragsdale’s reasoning counsels that the district court

could not implement § 825.301(f) if the consequence of doing so was

to afford Lubke an FMLA remedy to which he was not otherwise

entitled. Absent such entitlement, Lubke could not demonstrate

prejudice from the City’s defective notice. The jury found,

however, after a vigorous evidentiary contest, that Lubke’s leave

qualified under FMLA. Further, the City conceded that had Lubke

submitted the doctors’ letters earlier in its investigatory

process, it would have approved his FMLA leave. Thus, Lubke

clearly proved prejudice because, absent a finding — unjustified by

the disputed evidence — that his medical certification was untimely

as a matter of law, he could have submitted the doctors’ reports

and not been fired.

On the record as a whole, assuming the district court’s

ruling was erroneous, it did not deprive the City of its

entitlement to medical substantiation, see 29 U.S.C. § 2613(a), and

it did not confer on Lubke greater rights than those afforded by

FMLA.

13
 C. Excluded evidence

The City next argues that the district court erred in

excluding evidence of Lubke’s prior disciplinary problems. We

review a district court’s decision to exclude evidence for abuse of

discretion, National Hispanic Circus, Inc. v. Rex Trucking, Inc.,

414 F.3d 546, 551 (5th Cir. 2005), tempered by the harmless error

rule. Id. Here, there is no abuse of discretion.

The district court excluded any evidence of Lubke’s past

disciplinary problems, because, in response to a request for

admission, the City unequivocally “Admitted” that Lubke was

discharged for the Y2K absence events only. Given the City’s

admission, and the consequent irrelevance of Lubke’s disciplinary

history to the decision to terminate, the district court did not

abuse its discretion in excluding the evidence. Likewise, the two

prior infractions were unnecessary to rebut Lubke’s representation

that he was a dedicated firefighter. The City argues that Lubke’s

assertions left the jury with the impression that he was a good

employee who had not been subjected to disciplinary action. Lubke

did not, however, intimate that “dedicated” meant “no disciplinary

problems.” Rather, Lubke’s dedication could aptly describe his

twenty-two years of service. Because the City’s other arguments

for admitting this evidence are even less substantial, the district

court did not abuse its discretion in excluding it.

D. Measure of damages for lost insurance benefits

14
 The City next contends that the district court erred in

holding that the proper measure of damages for Lubke’s lost

insurance benefits is the “value” of the lost insurance. The

district court only allowed evidence about the “value” of the lost

insurance and excluded evidence that Lubke sustained no out-of-

pocket loss to replace his insurance.6 The City argues that the

lost “value” is not recoverable and urges that the correct measure

of damages is either 1) actual replacement cost for the insurance,

or 2) expenses incurred that would have been covered under his

former insurance plan. We review the district court’s ruling

regarding the proper measure of damages de novo. Boston Old Colony

Ins. Co. v. Tiner Assocs. Inc., 288 F.3d 222, 230 (5th Cir. 2002).

The FMLA’s remedial provisions state:

An employer who violates section 2615 of this title shall
be liable to any eligible employee affected . . . for
damages equal to . . . the amount of . . .

(I) any wages, salary, employment benefits,
or other compensation denied or lost to such
employee by reason of the violation; or

(II) in a case in which wages, salary,
employment benefits, or other compensation
have not been denied or lost to the employee,
any actual monetary losses sustained by the
employee as a direct result of the violation.

29 U.S.C. § 2617(a)(1)(A). This plain language does not assist in

answering whether, as the district court determined, the value of

lost insurance benefits alone is a proper measure of damages. Our

6
Lubke didn’t pay for substitute coverage because he became covered
by his wife’s City-furnished medical insurance.

15
holdings in similar Age Discrimination in Employment Act (“ADEA”)

cases, however, are instructive.

In ADEA cases, an employee “is limited to recovery of

those expenses actually incurred by either replacement of the lost

insurance or occurrence of the insured risk.” Pearce v. Carrier

Corp., 966 F.2d 958, 959 (5th Cir. 1992); see also Brunnemann v.

Terra Int’l, Inc., 975 F.2d 175, 179 (5th Cir. 1992). Although

Lubke disputes the applicability of ADEA cases, the ADEA

incorporates the remedies available under the Fair Labor Standards

Act (“FLSA”). See 29 U.S.C. § 626(b). Moreover, “the legislative

history of the FMLA reveals that Congress intended the remedial

provisions of the FMLA to mirror those in the FLSA.” Nero v.

Indust. Molding Corp., 167 F.3d 921, 928 (5th Cir. 1999) (quoting

Frizzell v. Sw. Motor Freight, 154 F.3d 641, 644 (6th Cir. 1998)).

Because the remedies available under the ADEA and the FMLA both

track the FLSA, cases interpreting remedies under the statutes

should be consistent. Consequently, we hold that the correct

measure of damages for lost insurance benefits in FMLA cases is

either actual replacement cost for the insurance, or expenses

actually incurred that would have been covered under a former

insurance plan. The lost “value” of benefits, absent actual costs

to the plaintiff, is not recoverable. Here, because the jury

awarded an undifferentiated sum for employee benefits without

segregating insurance benefits, and the award was based on an

16
incorrect understanding of FMLA remedies, we must remand to the

district court for redetermination of this damage element.

E. Offsetting the amount of retirement plan payout

Finally, the City argues that the district court should

have offset the amount of Lubke’s retirement plan payout, which he

received at termination, against his damage award.

As a threshold matter, Lubke argues that the City waived

its offset argument by not pleading it as an affirmative defense,

pursuant to FED. R. CIV. P. 8(c). Regardless whether the City pled

offset, however, both parties addressed the issue in their pretrial

motions in limine. Lubke was on notice of the City’s position and

suffered no prejudice by the absence of a formal initial pleading.

Giles v. General Elec. Co., 245 F.3d 474, 494 n.36 (5th Cir. 2001).

An employer’s portion of retirement and other payments

made to a terminated employee must be deducted from an award of

lost wages and benefits in ADEA discrimination cases. See

Brunnemann, 975 F.2d at 179 n.7 (noting that “a deduction is

allowed for sums received from retirement benefits” upon

termination); Guthrie v. J.C. Penney Co., Inc., 803 F.2d 202,

209-10 (5th Cir. 1986) (holding that “Guthrie’s back pay award

should be reduced by payments received from Penney’s retirement

fund”). The City argues that this rule should apply in FMLA cases.

The district court, on the other hand, adopted the rationale used

in personal injury tort cases and applied the collateral source

17
rule. See Haughton v. Blackships, Inc., 462 F.2d 788 (5th Cir.

1972). Where the City is being sued in its capacity as an

employer, not as a tortfeasor, the ADEA discrimination cases are

more analogous.

Lubke responds that, even if the amount of the retirement

plan payout should be deducted from an award of FMLA back pay, the

rule should not apply to his case because he and the City both

contributed to the funds in which the retirement benefits were

held.7 Because Lubke should not be penalized for his

contributions, and the City should receive the benefit of our

relevant precedent, we hold that an offset should be allowed for

the employer’s portion of Lubke’s retirement plan payout at his

termination.

The consequence of this ruling and of the court’s

erroneous measure for lost insurance benefits is that the entire

damage award must be revised or retried. Only thus can the

retirement payment be offset against the full amount of both

backpay and the recomputed benefits award. The liquidated damages

will then also require reconsideration.

III. CONCLUSION

7
Lubke also argues that the ADEA cases should not apply because lost
wages are legal relief under the FMLA, but are equitable relief, and thus
discretionary, under the ADEA. We find any distinction, however, meaningless.
The measure of damages for lost wages is the same whether it is equitable or
legal. In one case a jury decides and in the other a court decides. Both
decisionmakers have ample discretion in making the awards, and the proper measure
must be the same in each case.

18
 For the reasons discussed above, we affirm liability but

vacate and remand for proceedings to reassess damages in accordance

herewith.

JUDGMENT AFFIRMED IN PART, VACATED AND REMANDED IN PART.

19