United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 6, 2006
Charles R. Fulbruge III
Clerk
No. 06-20274
Summary Calendar
MARILYN FORD-EVANS
Plaintiff - Appellant
v.
DANIEL SMITH, Individually; UNITED SPACE ALLIANCE LLC
Defendants - Appellees
Appeal from the United States District Court
for the Southern District of Texas, Houston
No. 4:04-CV-3344
Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.
PER CURIAM:*
In this case, we decide whether the district court properly
granted defendant-appellant United Space Alliance, LLC summary
judgment on plaintiff-appellant Marilyn Ford-Evans’s interference
claim under the Family and Medical Leave Act. For the reasons
stated, we AFFIRM in part, VACATE in part and REMAND for further
proceedings.
*
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this opinion should not be published and is not precedent except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.
I. PROCEDURAL HISTORY
Plaintiff-appellant Marilyn Ford-Evans brought this action
against her former employer, defendant-appellee United Space
Alliance, LLC (“USA”), and against her former supervisor at USA,
Daniel Smith.1 In her February 7, 2005 amended complaint
(“complaint”), Ford-Evans brought claims under the Americans with
Disabilities Act (“ADA”), 42 U.S.C. § 12101 et. seq., and the
Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et. seq.,
and she also brought a state-law claim for slander. USA moved
for summary judgment, and Ford-Evans did not respond. The
district court granted USA summary judgment, dismissing all of
Ford-Evans’s claims against it.
Ford-Evans subsequently filed a motion to alter or amend
judgment. In her motion, she did not contest the district
court’s granting of summary judgment as to her ADA claim, her
FMLA retaliation claim, and her slander claim; instead, she
asserted that the granting of summary judgment as to her FMLA
interference claim was improper because USA had not moved for
summary judgment as to this claim. The district court denied
Ford-Evans’s motion on the basis that her complaint did not
adequately allege FMLA interference. Ford-Evans timely appealed.
She appeals only the district court’s grant of summary judgment
as to her FMLA interference claim.
1
Smith is not a party to this appeal.
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II. DISCUSSION
A. Standard of Review
We review a grant of summary judgment de novo, applying the
same standards as the district court. Riverwood Int’l Corp. v.
Employers Ins. of Wausau, 420 F.3d 378, 382 (5th Cir. 2005)
(citing Burch v. City of Nacogdoches, 174 F.3d 615, 618 (5th Cir.
1999)). The “party seeking summary judgment always bears the
initial responsibility of informing the district court of the
basis for its motion, and identifying those portions of ‘the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,’ which
it believes demonstrate the absence of a genuine issue of
material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986); see also Little v. Liquid Air Corp., 37 F.3d 1069, 1075
(5th Cir. 1994) (en banc) (per curiam). “If the moving party
fails to meet this initial burden, the motion must be denied,
regardless of the nonmovant’s response.” Little, 37 F.3d at
1075. Only “[i]f the movant . . . meet[s] this burden [must] the
nonmovant . . . go beyond the pleadings and designate specific
facts showing that there is a genuine issue for trial.” Id.
(emphasis added) (citing Celotex, 477 U.S. at 325). “[E]ven when
the non-movant bears the burden of proof at trial, ‘simply filing
a summary judgment motion does not immediately compel the party
opposing the motion to come forward with evidence demonstrating
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material issues of fact as to every element of [her] case.’”
Ashe v. Corley, 992 F.2d 540, 543 (5th Cir. 1993) (quoting Russ
v. Int’l Paper Co., 943 F.2d 589, 591 (5th Cir. 1991) (per
curiam)). Moreover, “[a] motion for summary judgment cannot be
granted simply because there is no opposition, even if the
failure to oppose violated a local rule.” United States v.
Wilson, 113 F. App’x 17, 18 (5th Cir. 2004) (per curiam)
(unpublished opinion) (quoting Hibernia Nat’l Bank v.
Administracion Cent. Sociedad Anonima, 776 F.2d 1277, 1279 (5th
Cir. 1985)); see also John v. Louisiana, 757 F.2d 698, 709 (5th
Cir. 1985).
B. Analysis
USA contends that Ford-Evans did not adequately plead an
FMLA interference claim. But it is clear that in her complaint
Ford-Evans put USA on notice that she intended to pursue an FMLA
claim not only for retaliation but also for interference. FMLA’s
interference provision makes it “unlawful for any employer to
interfere with, restrain, or deny the exercise of or the attempt
to exercise,” any substantive FMLA right. 29 U.S.C.
§ 2615(a)(1); see also Haley v. Alliance Compressor LLC, 391 F.3d
644, 649 (5th Cir. 2004); Kauffman v. Fed. Express Corp., 426
F.3d 880, 884 (7th Cir. 2005). In a section of the complaint
titled “VIOLATIONS OF FAMILY MEDICAL LEAVE ACT,” Ford-Evans
alleged that USA “unlawfully interferes, restrains and/or denies
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its employees [sic] exercise and/or attempts to exercise rights
provided under the [FMLA].” R. 65, Am. Compl. ¶ 14. This
language tracks § 2615(a)(1), FMLA’s interference provision. The
same section of the complaint states that Ford-Evans seeks
restoration to the position that she held when her FMLA leave
commenced; the right to reinstatement upon return from leave is a
right protected by FMLA’s interference provision. Haley, 391
F.3d at 649; Kauffman, 426 F.3d at 884.
It is true that the complaint contained a dearth of factual
details supporting Ford-Evans’s FMLA interference claim. But USA
chose not to challenge the sufficiency of her pleadings either in
a Rule 12(b)(6) motion to dismiss or in a Rule 12(e) motion for a
more definite statement. Instead, USA ignored any pleading
inadequacy, even though it knew that Ford-Evans intended to rely
upon an FMLA interference theory of recovery.2
Although USA moved for summary judgment on all of Ford-
Evans’s claims, in its motion and brief it addressed only the ADA
claims, the FMLA retaliation claim, and the state-law slander
claim; it did not attempt to address the FMLA interference claim.
With respect to this claim, USA did not discharge its initial
burden of informing the court of the basis for its motion and
2
USA’s knowledge that Ford-Evans brought an interference
claim is evident in the parties’ Joint Discovery/Case Management
Plan, wherein USA repeatedly acknowledged Ford-Evans’s claim for
“wrongful denial of medical leave.”
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pointing to the absence of a genuine issue of material fact;3
consequently, to survive summary judgment on her interference
claim, Ford-Evans was not obligated to respond.
III. CONCLUSION
For the foregoing reasons, the judgment of the district
court is VACATED to the extent that it dismisses the FMLA
interference claim. In all other respects, the judgment of the
district court is AFFIRMED. The case is REMANDED for further
proceedings. Costs shall be borne by USA.
3
Moreover, the arguments USA made with regard to Ford-
Evans’s FMLA retaliation claim would not apply to her
interference claim.
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