The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION
JOHN PRICE CASE NO. 5:19-CV-01362
VERSUS JUDGE TERRY A. DOUGHTY
INTERNATIONAL PAPER COMPANY MAGISTRATE JUDGE MARK L.
HORNSBY
MEMORANDUM RULING
Before the Court is a Motion for Summary Judgment [Doc. No. 17], filed by Defendant
International Paper Company, (“IP”) on February 12, 2021. Plaintiff John Price (“Price”) filed an
Opposition [“Doc. No. 22] on March 15, 2021, and IP filed a Reply [Doc. No. 24] on March 22,
2021.
For the reasons set forth herein, IP’s Motion for Summary Judgment is GRANTED.
I. BACKGROUND AND PROCEDURAL HISTORY
On October 17, 2019, Price filed a Complaint against IP alleging claims under the Family
Medical Leave Act (“FMLA”), under the American with Disabilities Act (“ADA”) and an
unspecified Louisiana state law claim. Specifically, Price alleges the following causes of action:
a) Failure to provide Price with his rights under the FMLA;
b) Interfering with Price’s rights under FMLA;
c) Failing to reinstate Price following FMLA leave;
d) Retaliating against Price for requesting leave under FMLA;
e) Retaliating against Price as a result of his leave under FMLA;
f) Discrimination due to disability and/or being regarded as disabled under the ADA; and
g) Presumably state law claims for damages as a result of anxiety, mental anguish, mental
suffering, humiliation, embarrassment, damage to reputation and economic and emotional distress
because of IP’s alleged conduct.
Price was hired by IP in 2011 to work at the Mansfield Mill as a trainee. Price worked his
way up from trainee to Wet-End Assistant which is the eyes and ears of the control room.1 There
is no dispute that during his first few years at IP, Price had no disciplinary problems.
IP maintains Price was terminated on August 30, 2018, due to missing work in violation of
IP’s Attendance Policy. IP maintains the Mansfield Mill had a no-fault attendance policy which
required that if an employee is sick and the illness is not covered by FMLA or Other Medical
Leave (“OML”), the absence counts as an “occurrence”.2
Specifically, IP maintains Price had the following seven “occurrences” within a 12-month
period:
11/28/2017 – Sick
12/22/2017 – Unexcused absence (left 6 hrs. 30 minutes early)
07/21/2018 – Unexcused absence
04/13/2018 – Unexcused absence (left work early)
04/24/2018 – No call/No show
07/20/2018 – Unexcused absence (left 4 hrs. early)
08/07/2018 – Unexcused absence (left 10 hrs. 45 minutes early)
IP also points to previous attendance issues which resulted in discipline to Price. Price had
occurrences on January 16, 2014, April 19, 2014 and a third on May 2, 2014.3 Since the Mansfield
1 Exh A, Price Depo 20-21
2 Exh A, Price Depo, Exh 12 Employee Handbook
3 Exh K, Bates No. IP 000144
Mill’s attendance policy required the appointment of a Guidance Committee after three
occurrences within a six-month period, a Guidance Committee was appointed to address these
issues with Price. After investigating the matter by interviewing Price, witnesses and reviewing
other information, the Guidance Committee recommended Price receive informal coaching for the
first two occurrences and then Price be placed on “full restrictive rights” for the third occurrence4.
The Guidance Committee’s recommendations were approved by Human Resources and the Plant
Manager.5
On June 21, 2017, Price was a no call/no show for a scheduled training day. A Guidance
Committee again investigated this occurrence and recommended a written warning, which was
also approved by Human Resources and Management.6
Price took three approved FMLA leaves on the following dates:
December 25, 2017-January 20, 2018;
May 8, 2018 – July 16, 2018; and
July 23, 2018 – August 6, 2018
IP maintains the seven occurrences within 12 months were not on dates covered by the
days Price was approved for FMLA leave. Price maintains that two of the occurrences (7/20/2018
and 8/7/2018) were covered by FMLA and should not have been counted against him as
occurrences. Price maintains he was granted “intermittent” FMLA leave, rather than “continuous”
FMLA leave as argued by IP. Price states that had these two dates not been counted against him,
he would not have been terminated.
4 Id.
5 Exh A, Price Depo Exh 12
6 Exh B, Woodall Depo 57
Price argues he left work early on July 20, 2018 because he had become ill and that July
20, 2018 should have been counted as the first partial day under the third FMLA leave. Price also
maintains the August 7. 2018 occurrence was his first day back to work following his use of what
he maintains was intermittent leave and that it should also have been covered by FMLA leave.
Price also maintains IP interfered with his right to intermittent leave by imposing upon him return-
to-work conditions applicable to continuous leave, by requiring him to obtain a medical
certification to return to work.
IP argues the FMLA leaves granted to Price were “continuous”, not “intermittent” leave.
IP’s reasons for terminating Price were based upon the previous discipline for occurrences and
culminating with the seven occurrences occurring between November 28, 2017 and August 8,
2018. Price doesn’t contest the five occurrences from November 28, 2017 through April 24, 2018
but does contest the last two (July 20, 2018 and August 7, 2018), claiming they should have been
counted as part of his intermittent leave.
After the August 7, 2018 occurrence, a Guidance Committee was convened on August 24,
2018, to discuss Price’s seven attendance occurrences within a 12-month period, in accordance
with IP’s attendance policy.7 Price did not offer any explanation for the occurrences and the
Guidance Committee recommended termination.8 Human Services approved the Guidance
Committee’s recommendation and Price was sent a termination letter on August 30, 2018.9 IP
maintains Price was disciplined seven times for his attendance and no call/no show violations.
II. LAW AND ANALYSIS
7 Exh A, Price Depo Exh 9
8 Id.
9 Exh A, Price Depo. Exh 8
A. Standard of Review
Summary judgment is appropriate when the evidence before a court shows “that there is
no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” FED. R. CIV. P. 56(a). A fact is “material” if proof of its existence or nonexistence would
affect the outcome of the lawsuit under applicable law in the case. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is “genuine” if the evidence is such
that a reasonable fact finder could render a verdict for the nonmoving party. Id.
“[A] 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) (quoting Anderson, 477 U.S. at 247). “The moving party may
meet its burden to demonstrate the absence of a genuine issue of material fact by pointing out that
the record contains no support for the non-moving party’s claim.” Stahl v. Novartis Pharm. Corp.,
283 F.3d 254, 263 (5th Cir. 2002). Thereafter, if the non-movant is unable to identify anything in
the record to support its claim, summary judgment is appropriate. Id. “The court need consider
only the cited materials, but it may consider other materials in the record.” Fed. R. Civ. P. 56(c)(3).
In evaluating a motion for summary judgment, courts “may not make credibility
determinations or weigh the evidence” and “must resolve all ambiguities and draw all permissible
inferences in favor of the non-moving party.” Total E & P USA Inc. v. Kerr–McGee Oil and Gas
Corp., 719 F.3d 424, 434 (5th Cir. 2013) (citations omitted). While courts will “resolve factual
controversies in favor of the nonmoving party,” an actual controversy exists only “when both
parties have submitted evidence of contradictory facts.” Little v. Liquid Air. Corp., 37 F.3d 1069,
1075 (5th Cir. 1994). To rebut a properly supported motion for summary judgment, the opposing
party must show, with “significant probative evidence,” that a genuine issue of material fact exists.
Hamilton v. Segue Software, Inc., 232 F.3d 473, 477 (5th Cir. 2000) (emphasis added). “‘If the
evidence is merely colorable, or is not significantly probative,’ summary judgment is appropriate.”
Cutting Underwater Tech. USA, Inc. v. Eni U.S. Operating Co., 671 F.3d 512, 517 (5th Cir. 2012)
(quoting Anderson, 477 U.S. at 248).
Relatedly, there can be no genuine dispute as to a material fact when a party fails “to make
a showing sufficient to establish the existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial.” Celotex Corp., 477 U.S. at 322-23. This
is true “since a complete failure of proof concerning an essential element of the nonmoving party’s
case necessarily renders all other facts immaterial.” Id. at 323.
B. Americans With Disabilities Act
Price alleged that IP discriminated against him in violation of the ADA. Absent direct
evidence of discrimination, a plaintiff must make a prima facie case of discrimination under the
ADA by showing he (1) has a disability, was regarded as disabled, or has a record of disability;
(2) was qualified for the job; (3) was subjected to an adverse employment decision on account of
his disability, and (4) was replaced by or treated less favorably than non-disabled employees.
EEOC v. Chevron Phillips Chem. Co., L.P., 570 F.3d 606, 615 (5th Cir. 2009).
The ADA defines a “disability” as “(A) a physical or mental impairment that substantially
limits one or more major life activities of such individual; (B) a record of such impairment; or (C)
being regarded as having such an impairment.” 42 U.S.C. 12102(1).
Price has neither proven nor argued that he has a “disability” under the ADA. Price’s
argument that he took “intermittent”, rather than “continuous” FMLA leave also supports the
conclusion that Price does not have an ADA disability. Since Price has not been able to prove a
disability, there is no reason to address the other three factors.
IP is entitled to summary judgment on Price’s ADA claim.
C. State Law Claims
Price alleged in his Complaint that he further invokes the supplemental jurisdiction of this
Court to hear and decide claims arising under the state law. Although no specific causes of action
under state law were alleged, Price alleged that he has suffered anxiety, mental anguish, mental
suffering, humiliation, embarrassment, damage to his reputation and has suffered both economic
and emotional distress due to IP’s conduct.
No argument has been made by Price in his opposition as to any state law claims. IP
addressed the potential claim as possibly alleged intentional infliction of emotional distress
(“IIED”).
To recover for the tort of IIED, a plaintiff must establish that: (1) the conduct of the
defendant was extreme and outrageous; (2) the emotional distress suffered by the plaintiff was
severe; and (3) the defendant desired to inflict severe emotional distress or knew that severe
emotional distress would be certain to result from his conduct. White v. Monsanto Co. 585 So.2d
1205, 1207, (La. 1991).
The allegations against IP do not meet this standard. No state law claims were briefed or
addressed by Price. This claim has also prescribed under La. CC article 3492’s one-year
prescriptive period. The alleged actions occurred on or before August 30, 2018 and the complaint
was not filed until October 17, 2019. IP is also entitled to summary judgment on any alleged state
law claims.
D. Family Medical Leave Act
Price’s claims under the FMLA are more complicated. Price alleges four claims against
IP under the FMLA: (a) failure to provide Price with his rights under the FMLA; (b) interfering
with Price’s rights under the FMLA; (c) failure to reinstate Price following FMLA leave; and (d)
retaliating against Price as a result of his leave under FMLA.
The FMLA requires covered employers to provide up to 12 weeks of unpaid leave to any
eligible employee who suffers from a “serious health condition” that makes the employee unable
to perform the functions of the position of such employee. After a qualifying absence, the
employer must restore the employee to the same position or position comparable to that held by
the employee before the leave. An employer may not “interfere with, restrain or deny the exercise
of … any right provided under” the FMLA. Thus, employers have a prescriptive obligation under
the FMLA – they must grant employees substantive rights guaranteed by the FMLA – and they
have a proscriptive obligation – they may not penalize employees for exercising these rights.10
(a) Failure to Provide Price with Rights Under FMLA
Price alleges in his Complaint that IP failed to provide him with his rights under the FMLA,
a prescriptive obligation. Price makes no argument and provides no evidence supporting this
claim.
IP provided evidence that when Price took FMLA leave on December 25, 2017, Price was
provided notice of his rights and responsibilities under the FMLA through the employee handbook,
OSHA training, and Sedgwick paperwork, which included the notice form provided by the
Department of Labor.11 Additionally, in the Employee Handbook, Price’s rights under the FMLA
10 Chaffin v. John H. Carter Co., Inc. 179 F.3d 316, 319 (5th Cir. 1999)
11 Exh A Price Depo 126, 132-139; Exh C Cylie Price Depo 876 106
were contained, including his right to take leave intermittently or on a reduced schedule whenever
necessary.12
IP is entitled to summary judgment on this claim.
(b) Failure to Reinstate Price Following FMLA Leave
Price maintains IP did not reinstate him when he returned from his third FMLA leave.
Price argues IP refused to let Price work when he returned from his third FMLA leave on August
8, 2018, and sent Price home early to obtain a medical work release, which Price maintains is not
required when returning from intermittent leave. Price also argues that because IP counted as an
“occurrence” the time he spent obtaining a medical work release, he was essentially fired because
of the delay in obtaining the work release.
Price also cites 29 C.F.R. 825.812(f) for a prohibition against terminating an employee
while awaiting a certification of fitness to return to duty for an intermittent leave absence. Price
argues that there is an issue of fact whether he took “continuous” or “intermittent leave, so
summary judgment should be DENIED on this issue.
IP argues Price’s third FMLA leave was “continuous” not “intermittent” leave and in
accordance with IP’s written policies, Price was required to submit a Return-to-Work release when
he returned from continuous leave. Additionally, IP maintains this claim should be dismissed
because Price was reinstated after all three FMLA leaves, including the third one. IP points to
Price’s deposition testimony,13 in which Price admits he was reinstated after he returned from his
third FMLA leave (on August 7, 2018), 14 and was not terminated until August 30, 2018, after the
Guidance Committee’s recommendation.
12 Exh A, Price Depo Exh 12
13 Exh A, Price Depo 150
14 There is a dispute whether Price returned to work on August 6 or August 7, 2018, but the specific date is not a
material issue of fact.
This Court finds IP is also entitled to summary judgment on this issue. Price was reinstated
all three of his FMLA leaves, including the third. Additionally, for reasons set forth further herein,
this Court finds Price took “continuous”, not “intermittent” leave which is an additional reason IP
is entitled to summary judgment on this claim.
(c) Interfering with Price’s Rights Under the FMLA
Price was terminated on August 30, 2018, after a Guidance Committee recommendation
due to Price having seven occurrences within one year, in accordance with IP’s Attendance Policy.
The last two “occurrences” that were counted by IP were on July 20, 2018, and on August 7, 2018.
Price took his third approved FMLA leave from July 23, 2018 to August 6, 2018. Since the last
two occurrences were just before and just after Price’s third FMLA leave, Price maintains he took
“intermittent”, rather than “continuous” FMLA leave and these two dates (July 20, 2018 and
August 7, 2018) should have been counted as part of his third FMLA leave, and not counted as
“occurrences.” There is no dispute that the last two occurrences triggered the Guidance Committee
being appointed, which recommended termination based upon Price’s seven “occurrences” within
a 12-month period.15
Price argues he left work early on July 20, 2018 because he had become ill. He then
requested and was approved for FMLA leave (third FMLA leave) and was out until Price returned
on August 7, 2018. IP Operations Manager, Chad Dees, send Price home early that day because
Price did not submit a doctor’s note clarifying his fitness to return to work immediately upon his
return to work from leave. The partial absences on July 20, 2018 and August 7, 2018 were not
approved by IP under his third FMLA leave, which resulted in two attendance “occurrences”,
which caused him to exceed the required number of attendance infractions. This caused the
15 Exh A, Price Depo Exh 9
Guidance Committee to be appointed, which ultimately resulted in his termination. Price
maintains by subjecting Price to the Return-to-Work conditions applicable to continuous leave,
instead of intermittent leave, IP interfered with Price’s rights under FMLA.
IP argues that the important point is that Price was terminated as a result of IP’s Attendance
Policy and was not fired as a result of taking FMLA leave. IP also argues that Price took
“continuous”, not “intermittent” leave, from July 23, 2018 to August 6, 2018 and therefore, there
was no interference with Price’s rights under the FMLA.
IP also argues that Price did not notify IP of his intention to take leave on July 20, 2018, or
on August 7, 2018, which he is legally required to do.16 IP also maintains Price was clearly
advised as part of his May 10, 2018 corrective action, that any future attendance issues or no call/no
show would likely result in termination.17 Also, IP maintains Price failed to notify Sedgwick of
the July 20 and August 7, 2018 absences as FMLA absences in accordance with the IP Attendance
Policy.
On the July 20, 2018 date, Price submits his Employee’s Family and Medical Leave
Request Form18 which requested a start date of July 19, 2018, and an end date of July 28, 2018.
This would include the July 20, 2018 date, but not the August 7, 2018 date. However, the Treating
Physician/Health Care Provider Certification Form19 showed Price’s treating physician, Dr. Arthur
Poch, certified the start time as July 31, 2018, which would have been after the July 20, 2018 date
in question.
16 29 U.S.C. 2612(e)(1)(2) and 29 C.F.R. 825.303
17 Exh K, Price Depo 372-374
18 Doc No. 22, Exh 2A
19 Doc No. 22, Exh 2
Price makes no argument that he notified IP of his intention to take August 7, 2018, as
FMLA leave. This Court believes this evidence shows IP is entitled to summary judgment on this
issue whether or not the leave was considered “intermittent” or “continuous”.
In a claim that the employee’s rights under FMLA have been interfered with, restrained or
denied, the Plaintiff bears the burden of proving that (1) he was an eligible employee; (2) his
employer was subject to FMLA requirements; (3) he was entitled to leave; (4) he gave proper
notice of his intention to take FMLA leave; and (5) his employer denied him benefits to which he
was entitled. DeVoss v. SW Airlines Co., 903 F.3d 487, 490 (5th Cir. 2018).
Price is not contesting any of his occurrences, except the ones occurring on July 20, 2018
and on August 7, 2018. The above evidence shows that he was not certified by his treating
physician, Dr. Poch for the July 20, 2018 date, and that Price never gave notice of his intention to
claim the August 7, 2018 date under FMLA. For these reasons, IP’s summary judgment should
be granted on this claim.20
For completeness, this Court will also address the issue of whether Price’s third FMLA
leave was “continuous” or “intermittent”. As discussed, this Court believes IP is entitled to
summary judgment on this issue, whether or not the leave was intermittent or continuous.
The FMLA secures a right for leave related to a health condition to be take intermittently
or as a reduced leave schedule when medically necessary.21 29 C.F.R. 825.202 discusses
intermittent leave. It defines “intermittent leave” as “FMLA leave taken in separate blocks of time
due to a single qualifying event”.22 It also gives an example of intermittent leave as “leave taken
20 See Acker v. General Motors, 853 F.3d 784 (5th Cir. 2017) and Greenwell v. State Farm Mut. Auto Ins. Co., 486
F.3d 840 (5th Cir. 2007).
21 29 U.S.C. 2612(b)(1)
22 29 C.F.R. 825.202(a)
on an occasional basis for medical appointments, or leave taken several days at a time spread over
a period of six months, such as for chemotherapy.”23
Price’s absence was not taken several days at a time, but from July 23, to August 6, 2018,
16 straight days. The Sixth Circuit has interpreted a period of intermittent leave to “comprise
periods….in which the employee is present at work.”24 Price was not present at work between
July 23, 2018 and August 6, 2018.
Price took continuous leave, not intermittent leave, and IP was within its rights to require
Price to submit a doctor’s certification as to Price’s fitness to return to work. IP is also entitled to
summary judgment on this claim.
(d) Retaliating Against Price as a Result of His FMLA Leave
Price maintains IP fired him as a result of him taking FMLA leave. The evidence submitted
by Price to support this claim is an August 7, 2018 email25 from IP Operation Manager Chad Dees
to Human Resources which stated the following:
“Brock and I just met with Milton and explained to him the
requirements. We sent him out to get a return to work from his doctor.
We have followed up with John Simpson, he should not have allowed
Milton to work without a return to work. Keep in mind he has never
had one and we all know how many days have been missed.”
Since Price lacks direct evidence of FMLA discrimination or retaliation, the McDonald
Douglas burden-shifting from work applies.26 The Plaintiff bears the initial burden to establish a
prima facie case of retaliation under the FMLA.27 To establish a prima facie case under the FMLA,
a plaintiff must show: (1) he was protected under the FMLA; (2) he has suffered an adverse
23 29 C.F.R. 825.202(b)(1)
24 Davis v. Michigan Bell Telephone Co., 543 F.3d 345, 350 (6th Cir. 2018)
25 Doc. No. 22, Exh 3
26 Harrelson v. Lufkin Industries, Inc. 614 Fed. Appx. 761, 763 (5th Cir. 2015)
27 Id.
employment action; and (3) he was treated less favorably than an employee who had not requested
leave under the FMLA or the adverse action was made because he sought protection under the
FMLA.28
Once the Plaintiff has established a prima facie case of retaliation, the burden shifts to the
employer to show a legitimate, non-discriminatory reason for the adverse employment action.29
The burden then shifts back to the employee to prove that the stated reason is merely a pretext for
illegal discrimination.30
IP concedes (for purposes of this summary judgment) that Price can establish the first two
prongs of his prima facie case, but is unable to establish the third – that he was treated less
favorably than an employee who had not requested leave or that his termination was because he
sought protection under the FMLA. This Court agrees.
IP documented its written Attendance Policy, which was uniformly applied. The evidence
shows Price was terminated (at the recommendation of a Guidance Committee), after seven
absence related “occurrences” which occurred within 12 months, which is set out in IP’s
Attendance Policy. Price has not proven that his termination was because he sought protection
under the FMLA.
However, even if Price had made a prima facie case under the FMLA, IP has certainly
established a non-discriminatory reason for Price’s termination – a violation of IP’s Attendance
Policy. IP’s policy was written, and uniformly applied. When Price had his seventh occurrence,
a Guidance Committee was appointed, and Price was recommended to be terminated. It is
undisputed that Price violated the terms of IP’s Attendance Policy.
28 Mauder v. Metro Transit Auth. Of Harris Cty., Tex., 446 F.3d 574 (5th Cir. 2006)
29 Id.,
30 Id.
Price is unable to demonstrate that the reason for his termination was a pretext for
retaliation. A plaintiff may establish pretext either through (1) evidence of disparate treatment or
(2) by showing that the employer’s preferred explanation is false or unworthy of credence.*!
Price cannot prove pretext. Although he thought Joe Woodall was out to get him, Price
admitted he had no evidence to that effect.** The email from Chad Dees fares no better for Price.
Everything said in the email was true — a back to work certification was required, and Price had a
lot of absences. Therefore, the email was not false, and Price has been unable to prove that Deas
was not worthy of credence. Dees didn’t fire Price. Price was fired at the recommendation of a
Guidance Committee after Price was given an opportunity to explain his position.
Price’s termination was 23 days after the seventh attendance occurrence on August 7, 2018.
Even if this is “temporal proximity” between the leave and the termination, temporal proximity
alone cannot be sufficient proof for causation.**
IP is also entitled to summary judgment on this claim.
I. CONCLUSION
For the reasons set forth herein,
The Motion for Summary Judgment [Doc. No. 17] filed by International Paper Company
is GRANTED. Plaintiff's claims against Defendant are hereby DISMISSED with prejudice.
MONROE, LOUISIANA, this 29th day of March, 2021. ox,
Ooms ESN
TERRY’A. DOUGHTY awe
UNITED STATES DISTRICE JUDGE
3! DeVost v. SW. Airlines Co., 903 F3d 487, 492 (5" Cir. 2018)
32 Exh A, Price Depo 245
33 Strong v. University Healthcare, 482 F.3d 802 (5™ Cir. 2007)
15