Harris v. Home Care PCA, LLC

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

ALTHEA HARRIS

CIVIL ACTION

VERSUS

NO. 20-156-JWD-SDJ

HOME CARE PCA, LLC

FINDINGS OF FACT AND CONCLUSIONS OF LAW

I. INTRODUCTION AND PROCEDURAL HISTORY

1. This action arises under the Family and Medical Leave Act of 1993 (“FMLA”), 29

U.S.C. § 2601 et seq. (Doc. 1.)

2. In this case, Plaintiff Althea Harris (“Plaintiff” or “Harris”) claims her former

employer, Defendant Home Care PCA, LLC, (“Defendant” or “Home Care”) interfered with her

taking protected FMLA leave. Specifically, Plaintiff argues that, when an employer requests

certification by a health care provider of the employee’s serious health condition, the employer

must give the employee fifteen (15) days to obtain that certification. See 29 C.F.R. § 825.313(b).

Here, says Plaintiff, Home Care fired her before the fifteen days expired, so Plaintiff is entitled to

recover for Home Care’s violation of the FMLA.

3. Conversely, Home Care argues, inter alia, that Harris failed to give it sufficient

notice that she might need FMLA leave. See 29 C.F.R. § 825.303. Thus, Home Care contends, the

fifteen-day certification period was never triggered.

4. The matter was tried to the bench on August 16, 2023. (Doc. 45.)

5. The Court makes the following Findings of Fact and Conclusions of Law. For any

finding of fact which is more appropriately considered a conclusion of law, it will be deemed as

such. For any conclusion of law more appropriately considered a finding of fact, it will be deemed

as such.

6. In sum, having carefully considered the law, the evidence in the record, and the

arguments and submissions of the parties, the Court finds that Plaintiff did provide sufficient notice

to reasonably apprise Home Care that she might need FMLA leave and that Defendant failed to

give the requisite fifteen days to obtain a certification. Consequently, Plaintiff has proven her

FMLA interference claim and will be awarded back pay, liquidated damages, interest, costs, and

attorney’s fees.

II. FINDINGS OF FACT

A. The Parties

1. Plaintiff Althea Harris

7. Harris has worked for Home Care since July of 2016. (Trial Transcript (“Tr.”) 6;

Doc. 1.)1

8. She was a supervisor when the events of this suit took place. (Tr. 6.) As a

supervisor, she did “a little bit of everything,” including employee orientations, in-home training,

client intakes, plans of care, Medicaid verification, patient care, answering the phone, employee

charts, and other duties. (Id.)

9. Plaintiff worked full time, 40 hours a week, making $12 an hour. (Id.)

2. Defendant Home Care

10. Home Care employs over 100 workers. (Joint Ex. 3, Brown Dep. at 7–8; see also

Tr. 6–7.)

1 Note, references to the Trial Transcript are to a preliminary draft provided by the Court Reporter to the Court. Neither

party requested a transcript, so none is in the record.

11. Tony Brown is the owner of Home Care. (Tr. 38.) Constance Lafayette is the office

manager. (Tr. 38.) Lafayette was Harris’s supervisor. (Tr. 42.)

12. At Home Care, it was Brown and the payroll clerk’s job to handle FMLA issues.

(Tr. 50–51; see also Tr. 38 (Brown did the company’s Human Resource work).)

B. Harris’s First Notice and the June 5th Medical Note

13. Toward the end of Harris’s employment, Harris began suffering from depression.

(Tr. 7.) She requested time off from her employer on June 5, 2018. (Id.) Harris testified that she

“told Ms. Constance that [she] was going to have to go to the doctor.” (Id.) This was the first time

Harris told anyone about wanting to take time off. (Tr. 10.)

14. Lafayette denied that Harris contacted her on June 5–7, 2018, (Tr. 42), but the Court

does not find this denial credible.

15. Harris provided Lafayette with a letter dated June 5, 2018, reflecting a visit she had

that day with Janet Landry, a NP at St. Elizabeth Physicians. (Tr. 8–9, 26; Joint Ex. 4.) The letter

said, “To Whom it May Concern: Althea Harris has been under my care on 6/5/2018. She may

return to work on 6/11/2018. If you have any questions or concerns, please don’t hesitate to call.”

(Joint Ex. 4.) Plaintiff conceded that the letter did not have a diagnosis and that there was no way

the employer could tell from this letter what the diagnosis was. (Tr. 17.)

16. At the end of this period, Harris said she “was planning on going back to work - -

but [she] needed a little time off.” (Tr. 9.)

C. The June 11th Medical Note

17. On June 11, 2018, Harris had another note, this time from Thomas Cannon, a

LCSW. (Tr. 9; Joint Ex. 5.) This note stated, “Please excuse Ms. Harris from working during the

period of time starting on 06/12/2018 and lasting until 06/19/2018. The time off would be

extremely beneficial to her. I would appreciate her absence being excused. I anticipate her being

able to return to work on 06/19/18.” (Joint Ex. 5.)

18. Plaintiff conceded that the letter does not contain a diagnosis or even says she

needed to be off because of a condition. (Tr. 18.)

19. Plaintiff also has a handwritten note from June 13, 2018, reflecting that, at 1:20

p.m., she went to pick something up from the office. (Pl. Ex. 2.) At 1:43 p.m., she went to the

office to pick up what Ms. Brown had for her, and Harris left an envelope and told someone she

was putting her doctor’s excuse on Lafayette’s desk. (Id.)

20. Harris took time off after providing the note. (Tr. 9.) She planned to go back to

work, but Home Care fired her before she could. (Tr. 9–10.)

D. Home Care’s June 13th Letter

21. Troy Brown of Home Care did not follow up in any way with the social worker for

more information. (Joint Ex. 3, Brown Dep. at 27.) He claimed that he would not follow up with

a medical provider because of HIPAA but would instead get the information from the employee.

(Id.)

22. In any event, on June 13, 2018, Harris was told to come to the office to pick up the

following letter that Brown had drafted:

This letter is to infotm you that unless you baye been hospitalized in the last iwo weeks

for at least “one full day”, you are required to retuim to work immediately upon receipt of

this letier, the following workday. If you are dealing with a “serious Uness” or “serlous

injury” from a sudden accident, you will not be excused from work unless we receive

detailed paperwork irom your treating Physician ahead of time, outlining the severity of

yout iliness or injury that warrants two Tyll week off a Doctors Excuse alone is not

guiticient, If this said paperwork needs to be forwarded-to us, it can be faxed to the

number above,

Two consecutive weeks off irom work without a serious iiness or serious injury

constitutes excessive unexcused absences, and your employment will be deemed

terminated if you do not return (o work the following workday, after recelving this letter.

A note importance, Doctors excuses doses not automatically give an employee excused —

absences, Your enployer has full discretion as to whether an excuse will warrant an

dbsence to ba excused ar Hot, .

look forward to your full cooperation with this matter.

(Tr. 11-12, 51; Joint Ex. 6.)

23. Brown testified by deposition that Plaintiff's June 13, 2018, note led to this letter

because Plaintiff “wasn’t giving us no details or anything, and [he] wanted to know specifically

what was going on... .” (Joint Ex. 3, Brown Dep. at 24.) He commented how, in the letter, he said

a “doctor’s excuse alone does not. . . excuse absences.” (/d.) He also wrote the letter because the

first excuse came from a nurse practitioner. (/d. at 25.) Later, Brown said he sent her the initial

letter at the time Brown sent her first doctor’s excuse. (/d. at 28.) The Court finds all of these

varying explanations unbelievable, particularly given Brown’s failure to show up at trial.

E. Harris’s Subsequent Medical Visits

24. Plaintiff continued going to the medical appointments after Brown’s letter, as she

“had a lot of doctors’ appointments after that.” (Tr. 12.)

25. On June 13, 2018, a progress note from Cannon (the LCSW) was drafted. The note

says:

Note: patient showed up as a walk in this PM. She was extremely

tearful in her presentation. She had received a note from her

employer requesting she go back to work tomorrow[.] We processed

her feelings. I offered to call the boss or provide more

documentation[,] but she does not want her boss to know all her

business. Gave her numbers to La workforce and Website job search

info for Civil Service. Denied S/H ideations.

Goal: I cant [sic] go back to work.

(Joint Ex. 8.)

26. Cannon “suggested she try to go to work and see if she could make it and see if

there was something we could give her boss.” (Id.)

27. Harris was diagnosed with “Major depressive disorder, single episode, severe

without psychotic features.” (Id.)

28. Harris recalled telling her doctor that she didn’t want her employer to know her

business, but she denied not wanting to give her employer more information. (Tr. 14–15.) Harris

also did not remember why Cannon included the information about Civil Service and Louisiana

Workforce. (Tr. 16.) As to the statement that her goal was not to go back to work, Harris said that

she “needed to get [her]self and [her] health in shape to go back to work.” (Id.) She had not made

up her mind not to go back to work after June 19th. (Tr. 17.)

F. Harris’s Termination and Later Events

29. Harris was terminated on June 14, 2018. (Tr. 20.) Lafayette had no evidence to

dispute this fact, (Tr. 37), and she admitted that this was the correct date during the Court’s

questioning of her. (Tr. 52.)

30. Lafayette stated that Brown asked Harris to submit information or come back to

work with the June 13 letter, but Harris did neither. (Tr. 43–44.) That is why Lafayette sent Harris

the termination letter. (Tr. 44.) According to Lafayette, Harris was not terminated but “submitted

a resignation for failure to come to the job.” (Tr. 44.)

31. Lafayette testified that Harris’s doctors offered to call her job, but Harris did not

want her to. (Tr. 44–46.) But Lafayette based this on Harris’s medical records. (Tr. 44–45.)

32. Plaintiff earlier testified that at no time did she give her employer any information

that would allow them to know why she was taking time off, even after the 19th. (Tr. 34.) She did

not email or send a letter. (Id.)

33. On June 25, 2018, Plaintiff called Lafayette “from unemployment for termination

date” which was “6-14-18.” (Pl. Ex. 2.) She had called Home Care because the unemployment

office wanted to know if she had been terminated. (Tr. 29.) Plaintiff received unemployment from

June 2018 until January 2019. She had to certify that she was able to do her job and could go to

work. (Tr. 28.) She needed the termination to get food stamps. (Tr. 29.) But, the two weeks that

she was unable to do her job was from June 4 to 19, 2018. (Tr. 28.)

34. Additionally, Plaintiff said she never gave Home Care any additional information

other than what was in the letters, as she had already been fired. (Tr. 18, 29.)

G. Home Care’s Justifications

35. Troy Brown testified that:

[Harris] actually was terminated because she stopped coming to work

without having any communication whatsoever, and after over a week

or so - - and that it could have been two weeks - -out of being concerned,

I directed . . . my office manager to communicate with her to find out

what was going on and let us know what’s really going on, because she

really abandoned her job without saying anything. She just stopped

coming to work, so we gave her the opportunity to be able to let us know

what was going on rather than just terminate her carte blanche without

finding out anything, and, of course, when . . . I communicated with her

[by] letter. . . we heard back from her in the form of something from her

doctor. . . . I gave her a letter asking, “Do you have a serious illness? Do

you have an injury? Is it something that’s stopping you from being able

to come to work that you just didn’t tell us? And, of course, she brought

us in something from there, but when I asked for the documentation

beyond just a doctor’s excuse . . she never got back in touch with us

anymore after. . . . [S]he was deemed terminated, because she was given

. . . reasonable time to bring us something to let us know where we are.

. . . “Are you dealing with something? Is there something that we need

to know about that we don’t know about?” And then, of course, she

never brought that in, and because she didn’t bring it in, her employment

was deemed terminated then.

(Joint Ex. 3, Brown Dep. at 19–21.) Brown said a “reasonable time” was “a few days” or “less

than a week” because “she stopped coming to work without saying anything[.]” (Id. at 21.)

36. Home Care harps on the fact that Plaintiff never talked to anyone at Home Care

about taking Family Medical Leave time or expressing any intention to take it. (Tr. 32.) Home

Care also emphasizes that Plaintiff was not hospitalized or institutionalized during the two weeks

she was out. (Tr. 33.) But Plaintiff said that, at the time she was fired, she didn’t know what Family

Medical Leave was. (Tr. 34.)

37. Home Care also focuses on the fact that the personnel manual has a policy on

absenteeism. Specifically, Defendant’s handbook provides:

If you are unable to work, call your supervisor or manager during

the first sixty (60) minutes of the work day and state your reason for

the absence. An absence of three (3) days without notification will

he considered a resignation of employment.

Excessive absences are strictly prohibited and will not be tolerated.

We understand employees may need to be absent from time to time.

Excused absences shall include, but are not limited to the following:

Other excused absences shall be at the supervisor's discretion.

(Joint Ex. 9 at 8; see also Tr. 41.)

38. Lafayette likewise said that Home Care was not given any information as to why

Harris was not coming back to work in the two doctors’ notes, and they needed more information.

(Tr. 46–47.) However, Lafayette conceded that, if an employer wants more information from a

medical provider, they are required by the FMLA to give the employee fifteen days to provide that

information. (Tr. 49.) Lafayette also conceded that Harris was not given that fifteen days. (Tr. 49.)

On redirect, Lafayette claimed Plaintiff had more than fifteen days to provide the information, (Tr.

at 49–50), but she admitted to the Court that there are in fact only ten days between June 4th and

June 14th, the date she was fired. (Tr. 52).

III. CONCLUSIONS OF LAW

A. Jurisdiction

39. Jurisdiction is proper under 28 U.S.C. § 1331, for federal question jurisdiction.

(Doc. 1 at 1.)

B. The FMLA Generally

40. “The FMLA permits an employee to take up to twelve weeks of medical leave for

their own serious medical condition or for the care of a family member with a serious medical

condition.” Lanier v. Univ. of Texas Sw. Med. Ctr., 527 F. App’x 312, 316 (5th Cir. 2013) (per

curiam) (citing 29 U.S.C. § 2612(a)(1)).

41. The purposes of the FMLA include: “(1) to balance the demands of the workplace

with the needs of families, to promote the stability and economic security of families, and to

promote national interests in preserving family integrity;” “(2) to entitle employees to take

reasonable leave for medical reasons, for the birth or adoption of a child, and for the care of a

child, spouse, or parent who has a serious health condition;” and (3) “to accomplish” the first and

second purposes “in a manner that accommodates the legitimate interests of employers[.]” 29

U.S.C. § 2601(b)(1)–(3).2

2 Other purposes of the FMLA include: (4) “to accomplish” the first two purposes in a way that “minimizes the

potential for employment discrimination on the basis of sex by ensuring generally that leave is available for eligible

medical reasons (including maternity-related disability) and for compelling family reasons, on a gender-neutral basis;”

42. “The FMLA prohibits an employer from interfering with, restraining, or denying

the exercise or attempted exercise of an employee’s right to take FMLA leave.” Lanier¸ 527 F.

App’x at 316 (citing 29 U.S.C. § 2615(a)(1)).

To establish a prima facie interference case, [a plaintiff] must show

that (1) she was an eligible employee, (2) [defendant] was an

employer subject to the FMLA’s requirements, (3) she was entitled

to leave, (4) she gave proper notice of her intention to take FMLA

leave, and (5) [defendant] denied her the benefits to which she was

entitled under the FMLA.

Id. (citing Donald v. Sybra, Inc., 667 F.3d 757, 761 (6th Cir. 2012)).

43. The first two requirements are not contested. Rather, the key to this case lies in the

last three.

C. Entitlement to Leave

44. An eligible employee is entitled to FMLA leave for, inter alia, “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). “The term ‘serious health condition’ means an illness,

injury, impairment, or physical or mental condition that involves--(A) inpatient care in a hospital,

hospice, or residential medical care facility; or (B) continuing treatment by a health care provider.”

Id. § 2611(11) (emphasis added).

45. “The term ‘health care provider’ means--(A) a doctor of medicine or osteopathy

who is authorized to practice medicine or surgery (as appropriate) by the State in which the doctor

practices; or (B) any other person determined by the Secretary to be capable of providing health

care services.” Id. § 2611(6). Under the regulations, “(2) Others ‘capable of providing health care

services’ include only: . . . (ii) Nurse practitioners [and] clinical social workers . . . who are

and (5) “to promote the goal of equal employment opportunity for women and men, pursuant to such clause.” 29

U.S.C. § 2601(b)(4)–(5).

authorized to practice under State law and who are performing within the scope of their practice

as defined under State law[.]” 29 C.F.R. § 825.102.

46. Despite some issue being raised about this in Brown’s deposition and at trial, there

is no serious dispute that the NP and LCSW in this case fall within the parameters of the statute.

Thus, the key question is whether Plaintiff was under “continuing treatment” by the NP and social

worker.

47. The statute does not define “continuing treatment by a healthcare provider,” but the

regulations provide guidance:

A serious health condition involving continuing treatment by a

health care provider includes any one or more of the following:

(a) Incapacity and treatment. A period of incapacity of more than

three consecutive, full calendar days, and any subsequent treatment

or period of incapacity relating to the same condition, that also

involves: . . .

(1) Treatment two or more times, within 30 days of the first

day of incapacity, unless extenuating circumstances exist, by

a health care provider, by a nurse under direct supervision of

a health care provider, or by a provider of health care

services (e.g., physical therapist) under orders of, or on

referral by, a health care provider[.].

Id. § 825.115.

48. Here, the Court finds that Harris satisfied these requirements. She was treated

several times within a thirty-day period by a nurse practitioner and a clinical social worker. (Joint

Exs. 4, 5.) The Court also finds credible Harris’s testimony that she was temporarily unable to

perform the functions of her job and that she needed time to recover from this depression. (Tr. 7,

9, 12, 16.)

49. Moreover, the June 13, 2018, clinical note from the LCSW, while somewhat

contradictory, confirms Harris’s condition. Again, Harris was diagnosed with “Major depressive

disorder, single episode, severe without psychotic features.” (Joint Ex. 8.) While Cannon

“suggested she try to go to work and see if she could make it,” the note continues that Harris “ see

if there was something we could give her boss.” (Id.) This latter part is consistent with the note’s

earlier comment that the LCSW “offered to call the boss or provide more documentation[.]” (Id.)

Thus, contrary to Home Care’s position, the note does not show that Harris was capable of working

but rather confirms that she was not, particularly when read with the June 5 and 11 medical notes.

50. Thus, Harris has demonstrated that she was entitled to FMLA leave.

D. Proper Notice

1. Applicable Law

51. Again, the other key question is whether Plaintiff “gave proper notice of her

intention to take FMLA leave.” Lanier, 527 F. App’x at 316. The Fifth Circuit has provided the

following guidance on this issue:

If an employee's need for leave is foreseeable, the Act requires the

employee to provide the employer with thirty days of notice.

[Greenwell v. State Farm Mut. Auto. Ins. Co., 486 F.3d 840, 842

(5th Cir. 2007)] (citing 29 C.F.R. § 825.302). For unforeseeable

absences, the employee must provide notice “ ‘as soon as

practicable.’ ” Id. (quoting 29 C.F.R. § 825.303(a)). The adequacy

of an employee's notice of the need for leave is dependent on the

facts and circumstances of each case. Manuel v. Westlake Polymers

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

“An employee need not expressly assert rights under the FMLA or

even mention the FMLA.” Saenz v. Harlingen Med. Ctr., L.P., 613

F.3d 576, 583 (5th Cir. 2010); Willis v. Coca Cola Enters., Inc., 445

F.3d 413, 417 (5th Cir. 2006). “The 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.” Satterfield v. Wal–Mart Stores, Inc., 135 F.3d

973, 977 (5th Cir. 1998) (internal quotation marks, citation, and

emphasis omitted). The employee must provide such information

about her condition as will make it evident that the FMLA is

implicated. Id. at 981. The burden will shift to the employer to make

further inquiry as to whether the leave qualifies for FMLA

protection. Id. at 982 (citing Gay v. Gilman Paper Co., 125 F.3d

1432, 1433–36 (11th Cir. 1997)); see also Willis, 445 F.3d at 417

(noting under regulations the employer’s responsibility to designate

leave as FMLA-qualifying); 29 C.F.R. § 825.303(b) (“The employer

will be expected to obtain any additional required information

through informal means.”).

Towns v. Ne. Miss. Elec. Power Ass’n, 478 F. App’x 244, 246–47 (5th Cir. 2012) (per curiam).

52. Additionally, in Lanier, the Court explained:

Although an employee need not use the phrase “FMLA leave,” she

must give notice that is sufficient to reasonably apprise her employer

that her request to take time off could fall under the FMLA. This

court does not apply categorical rules for the content of the notice;

instead we focus on what is “practicable” based on the facts and

circumstances of each individual. An employer may have a duty to

inquire further if statements made by the employee warrant it, but

“the employer is not required to be clairvoyant.”

Lanier , 527 F. App’x at 316 (citations omitted).

53. The regulations provide further information as to the content of the notice. “When

the approximate timing of the need for leave is not foreseeable, an employee must provide notice

to the employer as soon as practicable under the facts and circumstances of the particular case.”

29 C.F.R. § 825.303(a).

54. “An employee shall provide sufficient information for an employer to reasonably

determine whether the FMLA may apply to the leave request.” Id. § 825.303(b). “Depending on

the situation, such information may include that a condition renders the employee unable to

perform the functions of the job; [or] . . . whether the employee or the employee's family member

is under the continuing care of a health care provider; . . . and the anticipated duration of the

absence, if known.” Id.

55. “When an employee seeks leave for the first time for a FMLA–qualifying reason,

the employee need not expressly assert rights under the FMLA or even mention the FMLA.” Id.

56. “Calling in ‘sick’ without providing more information will not be considered

sufficient notice to trigger an employer's obligations under the Act[,]” but “[t]he employer will be

expected to obtain any additional required information through informal means.” Id.

57. Likewise, “[w]hen the need for leave is not foreseeable, an employee must comply

with the employer's usual and customary notice and procedural requirements for requesting leave,

absent unusual circumstances” Id. § 825.303(c). “[I]n the case of an emergency requiring leave

because of a FMLA–qualifying reason, written advance notice pursuant to an employer's internal

rules and procedures may not be required when FMLA leave is involved.” Id.

58. “Failure to respond to reasonable employer inquiries regarding the leave request

may result in denial of FMLA protection if the employer is unable to determine whether the leave

is FMLA–qualifying.” Id. § 825.303(b). Likewise, “[i]f an employee does not comply with the

employer's usual notice and procedural requirements, and no unusual circumstances justify the

failure to comply, FMLA–protected leave may be delayed or denied.” Id. § 825.303(c).

59. Thus, for example, in Lanier, the Fifth Circuit affirmed the granting of summary

judgment for the employer when the only request for leave was a text message asking to be taken

off call one evening, which was sent after the employee learned her father was in the emergency

room, even though the employer had knowledge that the father was over 90 years old, in poor

health, and despite having been told that the father was having breathing problems that morning.

527 F. App’x at 316.

60. Conversely, in Towns, the Fifth Circuit reversed the granting of summary judgment

because “the facts and circumstances as articulated by Towns suggest that a reasonable jury could

conclude that Towns would have pursued FMLA leave had Crabb inquired further and provided

her with that opportunity” and because “there is a fact issue as to whether Towns provided

NEMEPA with sufficient notice of her need for FMLA leave”. 478 F. App’x at 248.

2. Analysis

61. In sum, Harris prevails on this issue. That is, the Court finds that Harris provided

proper notice to Home Care so as to apprise it of the need for FMLA leave.

62. The Court bases its conclusion on several grounds. First, Harris herself testified that

she “told Ms. Constance that [she] was going to have to go to the doctor.” (Tr. 7.) The Court found

this testimony credible—and more credible than Lafayette’s denial.

63. Second, the Court finds that the June 5th and 11th Medical Notes also support the

Court’s conclusion that adequate notice was given. The June 5th Medical Note expressly stated that

Harris had been “under [the NP’s] care on 6/5/2018,” that “[s]he may return to work on 6/11/2018,”

and that the employer could reach out to the NP if it had any questions. (Joint Ex. 4.) Likewise,

the June 11th Medical Note, also requested an additional week from work off, stating that “time

off would be extremely beneficial to her,” that the LCSW would “appreciate her absence being

excused,” and that he “anticipate[d] her being able to return to work” the following week. (Joint

Ex. 5.)

64. Defendant complains that the precise medical condition is not known from the two

notes and that Plaintiff did not specifically invoke the FMLA, but, in doing so, Defendant ignores

the governing regulations. Again, “[w]hen an employee seeks leave for the first time for a FMLA–

qualifying reason, the employee need not expressly assert rights under the FMLA or even mention

the FMLA.” 29 C.F.R. § 825.303(b). “An employee shall provide sufficient information for an

employer to reasonably determine whether the FMLA may apply to the leave request.” Id.

(emphasis added). Thus, Plaintiff did not have to prove this FMLA requirement, just that it

reasonably may apply.

65. Further, the regulations continue, “Depending on the situation, such information

may include that a condition renders the employee unable to perform the functions of the job; [or]

. . . whether the employee . . . is under the continuing care of a health care provider; . . . and the

anticipated duration of the absence, if known.” Id. Here, again, the notes satisfy these through their

requests for time off and the facts that the notes themselves show continuing care by healthcare

providers and the specific durations of anticipated leave.

66. And third, Brown’s own June 13, 2018, letter confirms that Harris had sufficiently

apprised Home Care of the need for FMLA leave. As Plaintiff counsel stated during his questioning

at trial, the letter acknowledges that Harris at least may be dealing with a serious illness and

invokes the employer’s right under the FMLA for additional information. (Joint Ex. 6; Tr. 53 (“If

you are dealing with a ‘serious illness’ . . . you will not be excused from work unless we receive

detailed paperwork from your treating Physician ahead of time, outlining the severity of your

illness . . . that warrants two full weeks off.”).) The Court finds that there is little plausible

explanation for Brown to send a letter of this kind if Home Care were not already aware of the

possibility that the FMLA may be in play.

67. In sum, the Court finds that the “information imparted to [Home Care] [was]

sufficient to reasonably apprise it of [Harris’s] request to take time off for a serious health

condition.” Towns, 478 F. App’x at 247 (citation omitted).

68. The burden then shifted to Home Care “to make further inquiry as to whether the

leave qualifies for FMLA protection.” Id.

E. Denial of FMLA Benefits

69. To prevail, Harris must satisfy the final element of an FMLA claim: that Home

Care “denied her the benefits to which she was entitled under the FMLA.” Lanier, 527 F. App’x

at 316 (citations omitted).

70. “An employer may require that a request for [FMLA] leave . . . be supported by a

certification issued by the health care provider of the eligible employee.” 29 U.S.C. § 2613(a); see

also 29 C.F.R. § 825.305(a). “In the case of unforeseeable leave, an employer may deny FMLA

coverage for the requested leave if the employee fails to provide a certification within 15 calendar

days from receipt of the request for certification unless not practicable due to extenuating

circumstances.” 29 C.F.R. § 825.313(b).

71. The Fifth Circuit has noted the following about this certification requirement:

In the instant case, Harlingen’s counsel conceded at oral argument

that Saenz could not have been required to certify an absence after

she was terminated. In fact, termination during the mandatory 15–

day compliance period could itself be deemed a FMLA violation.

See Lubke v. City of Arlington, 455 F.3d 489, 496–97 (5th Cir. 2006)

(stating that 29 C.F.R. § 825.305(b) “requires” that the employer

allow the employee at least 15 days to respond to the medical

certification request); see also Killian v. Yorozu Auto. Tenn., Inc.,

454 F.3d 549, 554–55 (6th Cir. 2006) (termination of employee six

days into 15–day compliance period “was clearly a violation of the

FMLA”); Cooper v. Fulton County, 458 F.3d 1282, 1286 (11th Cir.

2006) (termination of employee before the lapse of the 15–day

compliance period deemed impermissible under FMLA);

Muhammad v. Ind. Bell Tel. Co., 182 Fed. Appx. 551, 553 (7th

Cir.2006) (unpublished) (describing the 15–day compliance period

as a prerequisite to adverse employment action); Rhoads v. FDIC,

257 F.3d 373, 383 (4th Cir. 2001) (“[T]he employer must allow the

employee at least fifteen calendar days to submit [certification].”

(emphasis added)); but see Young v. Russell Corp., No. 2:08–CV–

148, 2008 WL 5412782, *2 (M.D. Ala. Dec. 29, 2008) (noting that

“[i]f the employee never produces the certification, the leave is not

FMLA leave” where employee was afforded full 15–day period and

failed to comply (quoting 29 C.F.R. § 825.311(b) (2003)) (alteration

in original)); Tippens v. Airnet Sys., Inc., No. 2:05–CV–421, 2007

WL 1026954, *5 (S.D. Ohio Mar.30, 2007) (finding that failure to

submit medical certification was “fatal to a claim of FMLA

interference” where employer granted temporary approval until

lapse of 15–day period).

Saenz v. Harlingen Med. Ctr., L.P., 613 F.3d 576, 582 n.7 (5th Cir. 2010), superseded by

regulation (though on other grounds), as stated by Acker v. Gen. Motors, L.L.C., 853 F.3d 784,

790 (5th Cir. 2017).

72. Home Care cannot seriously dispute that it did not provide Harris with fifteen (15)

days before terminating her. Indeed, Lafayette admitted as much. (Tr. 49, 52.) Thus, Home Care

breached its FMLA obligations and interfered with Harris’s rights under the FMLA.

73. The Court notes that neither side referred to that portion of 29 C.F.R. § 825.313(b)

which states, “If the employee never produces the certification, the leave is not FMLA leave.” But,

Home Care cannot rely on this provision to defeat Harris’s claims.

74. First, Home Care did not specifically raise this issue in post-trial briefing. (See Doc.

47.) “The Fifth Circuit makes it clear that when a party does not address an issue in his brief to the

district court, that failure constitutes a waiver on appeal.” JMCB, LLC v. Bd. of Commerce &

Indus., 336 F. Supp. 3d 620, 634 (M.D. La. 2018) (deGravelles, J.) (quoting Magee v. Life Ins. Co.

of N. Am., 261 F. Supp. 2d 738, 748 n.10 (S.D. Tex. 2003)). “By analogy, failure to brief an

argument in the district court waives that argument in that court.” Id. (quoting Magee, 261 F. Supp.

2d at 748 n.10); see also U.S. ex rel. Wuestenhoefer v. Jefferson, 105 F. Supp. 3d 641, 672 (N.D.

Miss. 2015) (“This failure to develop the relevant argument effectively represents a waiver of the

point.”) (citing United States v. Dominguez–Chavez, 300 F. App’x 312, 313 (5th Cir. 2008)

(“Dominguez has failed to adequately raise or develop his due process and equal protection

arguments in his appellate brief, and, thus, they are waived.”); El–Moussa v. Holder, 569 F.3d 250,

257 (6th Cir. 2009) (“Issues adverted to in a perfunctory manner, unaccompanied by some effort

at developed argumentation, are deemed waived. It is not sufficient for a party to mention a

possible argument in [a] skeletal way, leaving the court to put flesh on its bones.”)).

75. Second, even if there were no waiver, this argument would fail on the merits. For

one, Plaintiff stated she provided no supplemental information to Home Care, (see Tr. 18, 29, 34),

Lafayette mentions at one point that her employer received Plaintiff’s medical records, though it

is unclear from Lafayette’s testimony as to when this occurred. (See Tr. 55.) Thus, the Court cannot

say that Harris “never produce[d] the certification” so as to violate this last part of § 825.313(b).

76. Moreover, Home Care makes no argument that the medical records received by

Home Care failed to be sufficient certification under 29 C.F.R. § 825.306. (See Doc. 47.) Thus,

any such argument is waived. Even if it weren’t, this Court already determined above that those

records (including the LCSW’s note and letters) were sufficient to demonstrate the Plaintiff’s

medical condition, her need for leave, her inability to perform the essential functions of her job,

the nature of her restrictions, and the likely duration of her incapacity. See 29 C.F.R. 825.306.

77. For these reasons, the Court finds that Plaintiff has satisfied the elements of her

FMLA interference claim.

F. Compliance with Employer Conditions

78. Defendant harps on Plaintiff’s alleged failure to comply with the absence policy.

Specifically, Defendant’s handbook provides:

If you are unable to work, call your supervisor or manager during

the first sixty (60) minutes of the work day and state your reason for

the absence. An absence of three (3) days without notification will

he considered a resignation of employment.

Excessive absences are strictly prohibited and will not be tolerated.

We understand employees may need to be absent from time to time.

Excused absences shall include, but are not limited to the following:

Other excused absences shall be at the supervisor's discretion.

(Joint Ex. 9 at 8.)

79. The regulation governing an employer’s call-in policy provides:

(d) Complying with employer policy. An employer may require an

employee to comply with the employer's usual and customary notice

and procedural requirements for requesting leave, absent unusual

circumstances. For example, an employer may require that written

notice set forth the reasons for the requested leave, the anticipated

duration of the leave, and the anticipated start of the leave. An

employee also may be required by an employer’s policy to contact

a specific individual. Unusual circumstances would include

situations such as when an employee is unable to comply with the

employer’s policy that requests for leave should be made by

contacting a specific number because on the day the employee needs

to provide notice of his or her need for FMLA leave there is no one

to answer the call-in number and the voice mail box is full. Where

an employee does not comply with the employer’s usual notice and

procedural requirements, and no unusual circumstances justify the

failure to comply, FMLA–protected leave may be delayed or denied.

However, FMLA–protected leave may not be delayed or denied

where the employer's policy requires notice to be given sooner than

set forth in paragraph (a) of this section and the employee provides

timely notice as set forth in paragraph (a) of this section.

29 C.F.R. § 825.302(d).

80. The Court finds that this regulation does not save Defendant. Putting aside the fact

that the June 5 and 11 medical notes provide the very written notice contemplated by the

regulation, the circumstances of this case present unusual circumstances justifying exemption from

Home Care’s call-policy—namely, that Harris had a conversation with Lafayette about her need

for leave, that Harris provided notes explaining her reason for being unable to work, that Harris

was in fact suffering from a major depressive episode preventing her from working, and that Brown

did not seriously dispute receiving Harris’s letters (and in fact said his June 13 letter was in direct

response to these medical notes), (Joint Ex. 3, Brown Dep. at 24–25, 28).

81. Moreover, again, § 825.302 qualifies the general rule by stating, “However,

FMLA–protected leave may not be delayed or denied where the employer's policy requires notice

to be given sooner than set forth in paragraph (a) of this section and the employee provides timely

notice as set forth in paragraph (a) of this section.” 29 C.F.R. § 825.302(d). Section 825.302(a)

and (b) provides in relevant part:

(a) Timing of notice. An employee must provide the employer at

least 30 days advance notice before FMLA leave is to begin if the

need for the leave is foreseeable . . . . If 30 days notice is not

practicable, such as because of a lack of knowledge of

approximately when leave will be required to begin, a change in

circumstances, or a medical emergency, notice must be given as

soon as practicable. . . . Whether FMLA leave is to be continuous or

is to be taken intermittently or on a reduced schedule basis, notice

need only be given one time, but the employee shall advise the

employer as soon as practicable if dates of scheduled leave change

or are extended, or were initially unknown. . . .

(b) As soon as practicable means as soon as both possible and

practical, taking into account all of the facts and circumstances in

the individual case. When an employee becomes aware of a need for

FMLA leave less than 30 days in advance, it should be practicable

for the employee to provide notice of the need for leave either the

same day or the next business day. In all cases, however, the

determination of when an employee could practicably provide

notice must take into account the individual facts and circumstances.

Id. § 825.302(a)–(b).

82. Interpreting this regulation, the Court finds that Harris gave notice “as soon as both

possible and practical” under the totality of the circumstances. Moreover, Harris complied with

her obligations to give notice “only . . . one time” and “as soon as practicable if dates of scheduled

leave change or are extended . . . .” Id. § 825.302(a).

83. In sum, Defendant’s notice policy does not defeat Harris’s claim.

G. Damages

84. “Any employer who violates section 2615” of the FMLA by, for instance,

interfering with an employee’s rights, “shall be liable to any eligible employee affected . . . for

damages equal to . . . the amount of . . . any wages, salary, employment benefits, or other

compensation denied or lost to such employee by reason of the violation[.]” 29 U.S.C. §

2617(a)(1)(A)(i)(I).

85. Again, Plaintiff worked full time, 40 hours a week, making $12 an hour, or $480

dollars a week. (Tr. 6.) She was terminated on June 14, 2018. Two hundred, seventy-five (275)

weeks have passed from that day until today, which brings the total amount of backpay to

$132,000.

86. The Court notes that Defendant made no argument about reducing this damage

amount in post-trial briefing. (See Doc. 47.) Thus, any such position is waived under the above

authorities. See JMCB, 336 F. Supp. 3d at 634.

87. Additionally, the Fifth Circuit has recognized that an award of front pay is

acceptable if reinstatement is not feasible. Downey v. Strain, 510 F.3d 534, 544 (5th Cir. 2007)

In exercising its discretion to award front pay, the district court must

consider whether an award of front pay is reasonable under the facts

of the case. Front pay can only be calculated through intelligent

guesswork, and we recognize its speculative character by according

wide latitude in its determination to the district courts. This court

has identified several factors to be considered in determining the

amount of a front pay award: (1) the length of prior employment, (2)

the permanency of the position held, (3) the nature of the work, (4)

the age and physical condition of the employee, (5) possible

consolidation of jobs, and (6) the myriad other non-discriminatory

factors which could validly affect the employer/employee

relationship.

Id. (cleaned up).

88. As Plaintiff concedes in briefing, Ms. Harris has reached retirement age (Doc. 48

at 14), and she only worked for Home Care for about two years prior to her termination. While

Plaintiff asks for two years’ worth of front pay, the Court finds that, under the circumstances

(including Plaintiff’s age, limited work experience at Home Care, the relative lack of evidence on

the other factors making such an award speculative, and the high amount of the back pay award

which already took into account five possible years of employment), an award of front pay is not

appropriate in this case.

89. Finally, if an employee prevails on an FMLA interference claim, that employee is

also entitled to “an additional amount as liquidated damages equal to the sum of” their lost wages,

monetary losses, and interest on those amounts, unless the defendant employer “proves to the

satisfaction of the court that the act or omission which violated section 2615 . . . was in good faith

and that the employer had reasonable grounds for believing that the act or omission was not a

violation of section 2615[.]” Id. § 2617(a)(1)(A)(iii). In that case, the court may, in its discretion,

reduce the above award of damages and interest. Id.

90. Here the Court finds that Home Care failed to establish that it was in good faith and

had reasonable grounds for believing its conduct was FMLA-compliant. In particular, no

reasonable person would conclude that Home Care acted appropriately by giving Harris only one

day to provide medical documentation in light of the FMLA regulation’s clear allowance for

fifteen days. Moreover, Home Care’s carefully worded June 13th letter, which used language

relevant to the FMLA without specifically mentioning that statute or its rights, strikes the Court as

a subterfuge to strong-arm Plaintiff and prevent her from exercising her rights under the FMLA.

Thus, Plaintiff is entitled to liquidated damages.

91. “The court in such an [FMLA] action shall, in addition to any judgment awarded

to the plaintiff, allow a reasonable attorney’s fee, reasonable expert witness fees, and other costs

of the action to be paid by the defendant.” 29 U.S.C. § 2617(a)(3) (emphasis added).

92. Accordingly, the Court will award costs and attorney’s fees. Plaintiff shall submit

a memorandum of costs in accordance with Middle District of Louisiana Local Civil Rule 54(c)

and a motion for attorney’s fees in accordance with Local Civil Rule 54(b).

IV. CONCLUSION

93. For all these reasons, the Court finds that Plaintiff Althea Harris has satisfied her

burden of proving that Home Care PCA, LLC, interfered with her exercising her rights under the

FMLA and that Harris is entitled to (a) $132,000 in back pay, (b) interest on that amount, calculated

at the prevailing rate, (c) an equal amount of liquidated damages, and (d) costs and attorney’s fees

in amounts to be determined after trial. The Court will enter judgment accordingly.

Signed in Baton Rouge, Louisiana, on September 26, 2023.

S

JUDGE JOHN W. deGRAVELLES

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA