Willis v. Coca Cola Enterprises, Inc.

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
March 31, 2006
FIFTH CIRCUIT
Charles R. Fulbruge III
____________ Clerk
No. 05-30047
____________

JENNIFER CROSS WILLIS,

Plaintiff - Appellant,

versus

COCA COLA ENTERPRISES INC, doing business as Alexandria
Coca Cola Bottling Company Ltd,

Defendant - Appellee.

Appeal from the United States District Court
For the Western District of Louisiana

Before REAVLEY,* GARZA, and BENAVIDES, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Jennifer Cross Willis (“Willis”) appeals the district court’s grant of summary judgment to

defendant, Coca Cola Enterprises, Inc. (“CCE”), on her claims of interference with her rights

under the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq., and gender

discrimination, in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C

*
Judge Reavley concurs in the judgment only.
§ 2000e et seq.

I

Willis had been employed by CCE since 1994, holding several jobs within the company

until she reached her final position as a Senior Account Manager. On a Monday in May of 2003,

Willis called her supervisor to let him know that she was sick and would be unable to come to

work that day. She also informed him that she was pregnant, but did not specifically articulate

that she was sick because of the pregnancy. The next day, a Tuesday, she called her supervisor to

find out where she should report to work, and her supervisor informed her that she could not

come back to work until she had secured a medical release from a doctor. She told him that she

had a doctor’s appointment on “Wednesday.” While she evidently meant the

following Wednesday))more than a week later))her supervisor took her to mean the next day.

She did not call in again, and had no contact with CCE until the Thursday of the following week,

when two employees came to her home to reclaim her company car. At that point, she contacted

CCE and was eventually brought in for a meeting where she was informed that she had violated

the company’s “No Call/No Show” policy. Under this policy, “an employee absent from work for

three consecutive days without notifying the supervisor during that period will be considered to

have voluntarily resigned.” Her employment was then terminated.

Willis brought suit under the FMLA, Title VII, and various Louisiana state statutes. The

district court granted summary judgment to CCE on the FMLA claim, holding that Willis had not

introduced any evidence that she was requesting medical leave pursuant to the FMLA. Indeed,

her desire to return to work indicated that she was not requesting medical leave. The district

court dismissed as “post hoc reasoning” Willis’s argument that she was on FMLA leave because

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her supervisor did not permit her to return to work until she had secured a medical release.

Additionally, the district court held that Willis had not established that CCE’s stated reason for

firing her was pretextual, and therefore, in violation of Title VII. Her discrimination claim under

Louisiana law was identical to her claims under Title VII and the court therefore granted summary

judgment to CCE on the state claims as well.

II

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

district court. Condrey v. SunTrust Bank of Ga., 429 F.3d 556, 562 (5th Cir. 2005). Summary

judgment is proper only when the movant can demonstrate that there is no genuine issue of

material fact and that he is entitled to judgment as a matter of law. Federal Insurance Co. v. Ace

Property & Casualty Co., 429 F.3d 120, 122 (5th Cir. 2005). “We construe all facts and

inferences in the light most favorable to the nonmoving party when reviewing grants of motions

for summary judgment.” Murray v. Earle, 405 F.3d 278, 284 (5th Cir. 2005).

A

On appeal, Willis argues that the district court erred in granting summary judgment to

CCE on her FMLA claim. Specifically, she argues that CCE was aware that she had requested

time off due to sickness, possibly related to her pregnancy, which therefore could be considered a

“serious health condition” under the FMLA. 29 C.F.R. § 825.114(a)(2)(ii). She asserts that she

was placed on “involuntary FMLA leave” because she was not permitted to return to work until

she had secured a doctor’s certification. Because she was fired while on this involuntary leave,

Willis argues that CCE interfered with her rights under the FMLA.

The appellee asserts that Willis provided inadequate notice to CCE of her need to take

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FMLA leave. See 29 C.F.R. § 825.208(a)(1) (“An employee giving notice of the need for unpaid

FMLA leave must explain the reasons for the needed leave so as to allow the employer to

determine that the leave qualifies under the Act.”); Satterfield v. Wal-Mart Stores, Inc., 135 F.3d

973, 980 (5th Cir. 1998) (“While an employer’s duty to inquire may be predicated on statements

made by the employee, the employer is not required to be clairvoyant.” (quoting Johnson v.

Primerica, 1996 WL 34148, at * 5 (S.D.N.Y. 1996)). Because Willis did not explicitly link her

sickness with her pregnancy, CCE avers that it was given inadequate notice of a serious health

condition and that it could not have placed Willis on FMLA leave without this notice.

The FMLA allows eligible employees 12 weeks of unpaid leave each year for “a serious

health condition that makes the employee unable to perform the functions of the position of such

employee.” 29 U.S.C. § 2612(a)(1)(D). “In all circumstances, it is the employer’s responsibility

to designate leave, paid or unpaid, as FMLA-qualifying, and to give notice of the designation to

the employee. . . .” 29 C.F.R. § 825.208(a). “An employee giving notice of the need for unpaid

FMLA leave must explain the reasons for the needed leave so as to allow the employer to

determine that the leave qualifies under the Act.” Id. at 825.208(a)(1). It is not necessary for the

employee to “expressly assert rights under the Act or even mention the FMLA” in order to put

the employer on notice of her need for leave. Id. at 825.208 (a)(2). This circuit, while declining

to issue any “categorical rules” for the type of notice given by an employee, has stated that: “[t]he

critical question is whether the information imparted to the employer is sufficient to reasonably

apprise it of the employee’s request to take time off for a serious health condition.” Manuel v.

Westlake Polymers Corp., 66 F.3d 758, 764 (5th Cir. 1995).

This case defies the conventional pattern for FMLA claims. Willis does not suggest that

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she requested FMLA leave and that CCE then interfered with, restrained, or denied her rights

under the Act. See 29 U.S.C. § 2615(a). Rather, Willis asserts that she was placed on

“involuntary leave” when her supervisor refused to permit her to return to work until she had

gotten a medical release and then, while she was on this mandated FMLA leave, fired her for non-

compliance with the leave policy of the company. To complicate matters, CCE denies that it ever

placed Willis on involuntary FMLA leave, thereby forcing Willis to assert her FMLA rights from

an unusual posture: at the time Willis stopped coming to work, she denied that she needed leave,

but now, enmeshed in litigation, Willis asserts that she was on FMLA leave.

We therefore must consider a novel question for this circuit: what constitutes involuntary

FMLA leave and what are the parties’ rights and obligations pursuant to this type of leave. As a

threshold matter, it is not contrary to the FMLA for an employee to be placed on “involuntary

FMLA leave.” See Megan E. Blomquist, Note, A Shield, Not a Sword: Involuntary Leave Under

the Family and Medical Leave Act, 76 Wash. L. Rev. 509, 510 (2001).1 In a 1995 advisory

opinion, the Department of Labor stated:

an employer can count an absence for sickness or injury as an FMLA absence if the
employee does not request that it be counted as such. So long as the employer is a
covered employer, the employee is an eligible employee, and the reason for the
absence meets one of the conditions described in the definitions of ‘serious health
conditions’ under FMLA, the employer may designate (and so advise the
employee) and count the absence against the employee’s 12-week FMLA
entitlement even if the employee has not requested that it be counted as such.

99 Wage & Hour Manual (BNA) 3067, Op. FMLA-68 (July 21, 1995). See also Tate v.

1
The district court erred when it stated, “The court, therefore, finds that, because Willis
was not requesting FMLA leave, the FMLA is not implicated in this case, and her FMLA claim fails
as a matter of law.” Such an explicit invocation of the FMLA is unnecessary. Satterfield, 135 F.3d
at 976 (citing 29 C.F.R. § 825.303).

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Farmland Ind., Inc., 268 F.3d 989, 998 (10th Cir. 2001) (noting that the involuntary nature of the

leave does not render an employee unable to assert rights under the FMLA); Moss v. Formosa

Plastics Corp., 99 F.Supp.2d 737, 741 (M.D. La. 2000) (“[T]here is nothing in [the FMLA] or

jurisprudence which prevents an employer from placing an employee on unpaid leave.”); Love v.

City of Dallas, 1997 WL 278126 (N.D. Tex. 1997) (unpublished) (observing that “[e]mployers

who force employees to take unpaid leave under the FMLA are really only: (1) placing the

employee on involuntary leave, and then (2) giving the employee the option of availing hin or

herself of the benefits of the FMLA during the first 12 weeks of such leave”).

In an unpublished opinion, the Sixth Circuit discussed what pre-requisites must be met

before involuntary leave can be designated FMLA leave. See Hicks v. Leroy’s Jewelers, Inc., 225

F.3d 659, *4 (6th Cir. 2000) (unpublished). Citing prior district court opinions, the court

observed that the FMLA’s implementing regulations allow an employer to place an employee on

involuntary FMLA leave so long as the employee is eligible “by virtue of having taken a qualified

absence from work.” Id. The court went on to state, “of course, [the employer’s] decision to

place [the employee] on ‘involuntary’ FMLA leave could not be upheld if it were determined that

her hospital stay was not a qualifying absence under the Act because she was able . . . to return to

work upon her release.” Id. The Sixth Circuit thus concludes that so long as the employee is

eligible for leave under the FMLA, it is immaterial whether it is the employee or the employer

who triggers the FMLA leave.

In Tate v. Farmland Ind., 268 F.3d at 989, the Tenth Circuit addressed what notice to the

employer is necessary before involuntary leave could be designated FMLA leave. In that case,

Tate, who was employed as an operator of commercial vehicles, was diagnosed with a form of

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seizures. Id. at 991. His employer placed Tate on sick leave while it determined whether or not

he could continue to drive and then formally terminated his employment while he was still on sick

leave. Id. Tate argued that his employer interfered with his FMLA rights by firing him without

providing him with the leave entitled under the FMLA. Id. at 996. The district court held that

Tate had failed to allege the necessary elements for an FMLA claim and thus dismissed for failure

to state a claim; the appeals court reversed. Id. at 996-97. The court held:

Pending its review of Plaintiff’s health status, Defendant placed Plaintiff on
involuntary sick leave. Thus, Defendant was clearly on notice that Plaintiff might
qualify for FMLA benefits since Defendant triggered Plaintiff’s leave. Given
Plaintiff’s allegation that Defendant placed him on sick leave, Plaintiff need not
allege he provided Defendant with notice of his rights under the FMLA.

Id. at 998. Despite the fact that the FMLA was brought up only in litigation by the plaintiff-

employee, the court allowed the claim to proceed.

We believe the statutory language of the 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; in other words, that the employee provide notice

to the employer of a “serious health condition.” See 29 C.F.R. § 825.112(a)(4) (mandating that

employers grant leave to employees “because of a serious health condition that makes the

employee unable to perform the functions of the employee’s job”). Although the Tenth Circuit’s

decision in Tate can be read not to require notice of a serious health condition by the employee

when the employer mandates leave, in that case, that court was addressing a situation in which the

employer knew that the employee suffered from seizures, which is self-evidently a serious health

condition in an individual who drives commercial vehicles. Tate, 268 F.3d at 991. There was

thus no need for that court to consider separately whether the employer was on notice that the

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employee had a serious health condition, as the court could safely assume it was. The Sixth

Circuit, however, would allow FMLA leave only to an employee with a serious health condition,

underscoring that there is a crucial nexus between the employer being on notice of a serious

health condition and the employee being placed on FMLA leave, whether or not it is formally

designated as such. Hicks, 225 F.3d at *4.

We cannot assume that every time an employer chooses to place an individual on leave

that the FMLA is triggered. See Satterfield, 135 F.3d at 980 (noting that plaintiff had previously

taken leave pursuant to internal company policy). The FMLA is implicated, as the statutory

language indicates, when the employee has provided sufficient information to “allow the employer

to determine that the leave qualifies under the Act.” 29 C.F.R. § 825.208 (a)(1). The statutory

scheme explicitly states that it is the “employer’s responsibility to designate leave . . . as FMLA-

qualifying,” 29 C.F.R. § 825.208(a), and that the employee “must explain the reasons for the

needed leave.” Id. at § 825.208(a)(1) (emphasis added). This sharing of the informational burden

will not work if employees, for the purposes of litigation, can later designate leave as FMLA-

qualifying without making a proper showing that, at the time they requested leave, they put their

employer on notice that FMLA leave was necessary due to a serious medical condition.

While it is true that Willis’s employer placed her on leave pending medical release, thereby

suggesting that the employer had an awareness that Willis had a medical problem, Willis has not

provided sufficient evidence that CCE did so because it was on notice that she had a serious

health condition, such as sickness due to pregnancy. Willis stated explicitly in her deposition

testimony that she did not tell her supervisor that she was sick due to complications in her

pregnancy and did not assert that she clearly linked her sickness and her pregnancy. A complaint

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of sickness will not suffice as notice of a need to take FMLA leave. See Satterfield, 135 F.3d at

981 (“Requiring an employer to undertake to investigate whether FMLA-leave is appropriate each

time an employee . . . is ‘sick’ is quite inconsistent with the purposes of the FMLA, because it is

not necessary for the protection of employees who suffer from ‘serious health conditions.’”).

Therefore the district court did not err in granting summary judgment to CCE on Willis’s FMLA

claim.

B

Willis also contends the district court erred in granting summary judgment on her Title VII

claim of gender discrimination. The district court held that Willis had not provided sufficient

evidence that CCE’s stated reason for firing her was pretextual. Willis’s supervisor asserted that

he believed Willis’s doctor’s appointment was the day after their conversation, rather than a week

following, and that when she neither came to work nor called, she was in violation of well-

understood company attendance policies. The district court observed that Willis had not provided

evidence that CCE was being “disingenuous” in its explanation of its understanding of the timing

of Willis’s doctor’s appointment. Willis argues on appeal that the stated reason for firing

her))the violation of the “No Call/No Show” policy))is merely pretextual for CCE’s termination

of her employment because she was pregnant. See 42 U.S.C. § 2000e(k) (defining discrimination

“because of sex” to include “because of or on the basis of pregnancy”). Specifically, she argues

that the district court erred in applying a “pretext-plus” analysis in violation of Reeves v.

Sanderson Plumbing Prod., 530 U.S. 133, 148 (2000) (rejecting the rule that a prima facie case

of discrimination combined with some evidence that the purported reason for the firing is false

will never allow a jury to find liability).

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 To analyze a discrimination claim under Title VII, we will engage in the familiar

McDonnell Douglas three-step analysis. See McDonnell Douglas Corp. v. Green, 411 U.S. 792,

802-04 (1973). Under this tripartite framework, a plaintiff first must raise a genuine issue of

material fact as to all four elements of a prima facie case of discrimination. Johnson v. Louisiana,

351 F.3d 616, 621 (5th Cir. 2003). To establish a prima facie case, the plaintiff must show that

“(1) she is a member of a protected class, (2) she was qualified for her position, (3) she suffered

an adverse employment action, and (4) others similarly situated were more favorably treated.”

Rutherford v. Harris Co., Tex., 197 F.3d 173, 184 (5th Cir. 1999). Once this prima facie case is

established, the employer has an opportunity to articulate a legitimate, non-discriminatory reason

for the adverse employment action. Johnson, 351 F.3d at 621. Once the employer offers

evidence of such a legitimate reason, the burden shifts back to the plaintiff-employee to raise a

genuine issue of material fact that this non-discriminatory reason is merely pretextual. Id.

Willis asserts, without citing record evidence, that non-pregnant employees who miss one

day of work are not required to produce a medical release prior to returning to work. At the

same time, however, Willis states that similarly-situated pregnant employees did not need to

adhere to the “No Call/No Show” policy while on leave. She concludes from these facts that she

was treated differently from both types of employees and that this is sufficient to indicate that the

stated reason for firing her is pretextual. However, there is evidence in the record that while it

might be typical to request a medical release after an employee misses two or more consecutive

days, a worker who misses one day can be required to supply a medical release, particularly if

CCE is aware that he or she is under a doctor’s care at the time. Furthermore, the affidavits

presented to the district court indicate that the anecdotal evidence of pregnant women who did

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not need to call in every day were exempt from such a policy because they had already taken a

formal leave of absence and had submitted a doctor’s note indicating that they would be absent

from work until a specified date.

Willis has failed to adduce evidence that the request for a medical release and her

subsequent firing due to her violation of the “No Call/No Show” policy, were motivated by

unlawful animus. Reeves, 530 U.S. at 146 (“[T]he ultimate question is whether the employer

intentionally discriminated. . . . It is not enough . . . to disbelieve the employer; the factfinder must

believe the plaintiff’s explanation of intentional discrimination.” (quoting St. Mary’s Honor

Center v. Hicks, 509 U.S. 502, 519 (1993)). Willis had yet to obtain a release from her doctor,

nor was she in touch with her supervisor for the week that passed before she obtained the release.

Indeed, even on the day of her doctor’s appointment, Willis did not communicate with CCE, and

had no contact with her employer until the following day. Willis has not produced sufficient

evidence to raise a fact issue as to whether CCE used her violation of the “No Call/No Show”

policy as a mere pretext for a discriminatory firing.

Therefore, we AFFIRM the district court’s grant of summary judgment.

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